ADA 101

The following article was published in the newspaper.  Below is my response which was also published.

MEDICAL POT LAW NEEDS A FIX

Oregon’s medical marijuana law needs to be clarified in view of the
latest court decision. The Supreme Court may do so eventually, but it
would be better – more democratic – for the legislature to perform that
chore.

In early 2005 the state Supreme Court ruled against a worker who had
been fired from a forest-products plant because he used medical
marijuana.

In a different case, however, the Bureau of Labor and Industries ruled
in favor of a worker, a drill press operator, who had been hired as a
temporary and who was let go in 2003 when he disclosed his medical
marijuana use. The labor bureau ruled that his employer had to make a
reasonable accommodation of his disability, which was that he was
smoking pot off the job to relieve his nausea and stomach cramps.

Last week the court of appeals turned down an appeal by the employer,
Emerald Steel Fabricators Inc. in Eugene, from the BOLI decision. The
court upheld BOLI, saying the company had not followed the correct
procedure in bringing up its main points.

This man had been hired for a temporary job, and the company’s practice
was to require a drug test before offering to keep someone on long
term. After doing the job for a while, the employee disclosed that he
had a medical marijuana card and wondered whether this would affect his
chance of being kept on. His supervisor took the case to the owner,
and shortly afterward the man was told he would no longer be needed.

There are two sides here, as anyone can see, and they conflict.

One side is that free citizens should have a right to keep their
private life private, not just from the government but from their
employers as well. As long as they show up on time and handle the job
satisfactorily, what they do on their own time is nobody else’s
business. To accept something less is to grant that employers can also
check up on whether you smoke tobacco at home, whether you have a drink
now and then, and ultimately how dangerous your habits and hobbies are
to your health, because this might affect the company’s benefit costs.

The other side is that employers do have a legitimate interest in
making sure their workers – especially drill press operators working
around heavy machinery – are not impaired by the lingering effects of
substances that may dull their senses. Otherwise the company runs the
risk of people getting injured or even killed, and of the company then
being sued, not to mention cited for safety violations.

The legislature could clear all that up. To protect employers, it
could declare that medical marijuana is not protected as a disability.
And to protect our privacy rights, it could say that employers can
require drug tests, but not routinely, only for cause.

 

Response from SG:

Having 14 years experience professionally consulting government and private businesses with the ADA I thought I should make a quick response. I have experience as an expert witness in Federal cases and the DOJ:

ADA 101

First, the state cannot change the intent nor the written federal laws and regulations of the Americans with Disabilities Act (ADA).  That is, the State must at least meet the federal requirements, and may exceed these with their own, but cannot lessen the Act.

Most people think of ADA as Parking and Ramps.  Although these items are an important factor there is much more to the Act besides physical barriers.  It is also about policies, procedures, and attitudes.

The ADA is a Civil Rights issue, not one of medications, treatments or drugs.  The ADA simply states that persons with disabilities shall have equal access to Programs, Services and Activities otherwise offered to any other member of the public.  To single out any type of treatment or disability is directly against the ADA.  This is what the court stated and is in fact in line with Federal regulations which the state must adhere to. Violations come with stiff penalties and loss of federal funding.

To single out a type of treatment then singles out many disabilities as allowed by the MMJ program. Who would this affect (what type of disability are you singling out)?  This is the same as putting MMJ program participants on the back of the bus (segregation). This type of thinking is exactly what the ADA is trying to abolish. Your first concern should be for the view you have on persons with disabilities.  From my experience in assisting with compliance and training, I have found that attitudinal barriers are by far the biggest hurdle.

Violation of a Civil Right is not the answer and the Legislature cannot change this.

The real answer to this issue is to re-schedule medical marijuana so that a Doctor can properly prescribe it.  This would then allow for the control and supply of MMJ rather than dealing in these grey areas.

As for the employer, the current Marijuana testing methods need to be reviewed. Current testing can show traces of the drug for up to 6 months after exposure.  The effect of the drug only lasts for 1 to 4 hours depending on strength and dosage.  In short there is no current test used generally by private employers that can detect if a person is “Under The Influence” of marijuana. This should be a primary concern that is addressed by private business sector and most certainly those big testing companies that make all the money from them (but have little interest in this area of development).

 

Perhaps the private sector can adopt what our military has learned about the value of “Impairment Testing” over a simple chemical analysis of the last 6 months of life.

Mike Mullins (Formerly CIO Disability Access Consultants, Inc.)

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