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Marijuana plant (copy)

We've got about a month to go until the Jan. 22 scheduled starting date for the 2019 legislative session, which means we're starting to get some ideas about proposed legislation.

It's shaping up as a busy session, with the top of the legislative agenda crammed with a number (quite a large number, actually) of tax proposals, a carbon cap-and-trade measure and a variety of land-use and affordable housing issues.

But there will be plenty of room for other familiar issues to slip onto the docket.

For example: Legislators may take a run at a measure that would make it illegal for employers to fire workers for using marijuana during nonworking hours. The measure, currently in the legislative concept stage, has surfaced before the Senate Interim Committee on Judiciary. The committee's chairman, Sen. Floyd Prozanski, D-Eugene, says the proposal likely will be the subject of discussion in his committee once the session gets started.

A somewhat similar measure, Senate Bill 301, surfaced during the 2017 session but couldn't get a vote in the Senate, where it died. Senate Bill 301 would have expanded protections already in place for tobacco consumers; the bill would have barred employers from requiring workers to abstain from any substance that is legal under Oregon law.

The new proposal takes a similar approach by declaring that such an insistence by employers represents an unlawful employment practice.

The proposal includes some exceptions, however: It doesn't allow a worker to work while impaired. And it would not apply if there's a "bona fide occupational qualification" associated with the job — for example, in cases where contracts between employers and federal officials require employers to have "a drug-free workplace" to receive federal dollars. (This is because, while pot use among adults is legal in Oregon, it remains illegal on the federal level, which just adds a level of complexity to the entire equation.) And the proposal wouldn't apply in cases in which an applicable collective bargaining agreement regarding the substance already is in place.

As any employer already knows, though, this is a tougher issue than it might appear at first. 

For starters, there is no clear standard yet in place on defining "impairment" for pot users — and since tetrahydrocannabinol, the principal psychoactive constituent of cannabis, can linger in the body for weeks or longer, testing for THC levels doesn't necessarily equate with impairment at any specific time; a test could be picking up THC that was ingested many weeks before.

The landscape here gets even more complicated when you consider that court rulings on the subject consistently have sided with employers.

And, to add another wrinkle, employers throughout Oregon are starting to lament the sheer number of job applicants they've been forced to reject after they tested positive for THC. With unemployment rates in Oregon consistently running below 4 percent (the figure in November was 3.9 percent, a slight tick upward from 3.8 percent in October), employers may be forced to rethink some of their positions on this issue just to fill vital jobs. (It is possible, we suppose, that marijuana use in Oregon will decline somewhat now that we're a few years into our experiment with legalization, but we're not sure that employers should put all their job-filling strategies into that basket.)

All of which is to say that legislators grappling with the issue will have plenty of questions to sort through as they start their work. If they can emerge from the session with some guidelines on this issue that add clarity for both employers and employees, that could be a big step forward. But if the end result just adds a little more smoke into a situation that already seems much too murky, it's hard to see who would benefit. (mm)

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