As Oregonians adjust to the new recreational marijuana law taking effect today, a national legal expert notes that state courts have come down squarely on the side of employers who've fired workers for off-duty use of the drug, even when it's been prescribed for medicinal purposes.

Even in the blue states of Oregon, Washington, California and Colorado, where medical marijuana is permitted, state courts have ruled for employers in those circumstances, saying they are within their rights because federal law classifies marijuana as an illegal drug.

"The courts are saying, 'We're not going to condone activity that is predicated on an act that's illegal under federal law,' " said Jim Shore, a Seattle-based partner with the Stoel Rives law firm who has nearly 30 years of experience in labor and employment law.

"Until Congress takes marijuana off Schedule I of the Controlled Substances Act, where it's classified at the same level as heroin, LSD and ecstasy, it is illegal for all purposes. It is not authorized for medical use and cannot be used even for medical reasons (in the workplace)," he said in an interview with The Oregonian/OregonLive.

Shore represented an employer before the Washington Supreme Court in a 2011 case in which the court determined Washington's Medical Use of Marijuana Act did not require the company to accommodate a worker's use of marijuana.

Jim Shore

In that case, a woman suffering migraine headaches that caused chronic pain, nausea and blurred vision received a doctor's prescription for medical marijuana and experienced substantial relief. She received a job offer as a customer service representative contingent on passing a drug screen and began training but was fired eight days later when the test results came back positive.

"Washington patients have no legal right to use marijuana under federal law," the court said. "No ... broad public policy exists that would require an employer to allow an employee to engage in illegal activity."

Similar rulings have been handed down by state supreme courts in other Western states generally regarded as politically liberal, Shore said.

California was the first. In a 2008 ruling, the court upheld the firing of a man who was fired from a supervisory position after testing positive for use of marijuana to treat his back pain and muscle spasms.

In Oregon, the state Supreme Court held in a 2010 case that employers are not obligated to accommodate the use of medical marijuana by disabled employees.

The Oregon Bureau of Labor and Industries initially found the employer had failed to provide a reasonable accommodation to a worker who told his employer about his medical marijuana card and his medical condition. However, the court reversed BOLI and the Oregon Court of Appeals in saying the company, Eugene-based Emerald Steel Fabricators, was justified in dismissing the employee.

Attorney Michael Evans, left, listens in his office in Denver, as his client Brandon Coats talks about the Colorado Court of Appeals ruling that upheld Coats, a quadriplegic, being fired from his job after testing positive for the use of medical marijuana. The state's highest court upheld the appellate ruling Monday, June 15, 2015, in a decision with national implications.

Most recently, the Colorado Supreme Court in June held that an employer acted legally when it fired a quadriplegic worker who used medical marijuana while off duty.

In each case, the justices said activity that is permissible under state law but illegal under federal law is not protected by state statute.

Shore said there has been some talk in Congress about passing a bill that would exempt from federal criminal prosecution any use of medical marijuana authorized by a state. But as long as marijuana remains on the Schedule I list of narcotics, the conflict between state and federal laws will exist, he said.

Some 23 states and the District of Columbia currently have laws legalizing medical marijuana. Four states - Colorado, Washington, Oregon and Alaska -- also have legalized recreational use of marijuana and similar measures are in the works in at least three more states for 2016.

Though public opinion is changing on marijuana use, it's unlikely Congress will act soon with next year's elections coming up, Shore said.

In the meantime, employers generally remain in a position to call the shots when it comes to workplace drug testing, ranging from zero-tolerance policies to having none at all, Shore said.

Some employers are required to have drug-testing policies if they are in a government-regulated industry with safety-sensitive positions such as long-haul truck drivers, he said.

"But there's no restriction on the employer's right to what kind of drug testing the employer wants to do," Shore said. "Some do pre-employment testing. Some do reasonable suspicion. Some like to do random testing. In those circumstances, you just have to set it up so it's not subject to challenge in a discriminatory context."

With more states legalizing marijuana, some employers have begun testing because they want a drug-free workplace, Shore said. But others are loosening their policies.

Some companies with succession plans in place have moved from zero-tolerance policies to an impairment standard, reflecting the values of younger generation managers moving into leadership positions, particularly in family-owned businesses, he said.

Other employers in rural areas have stopped doing pre-employment testing altogether because too many applicants were testing positive for marijuana use, he said. "They're now going to reasonable-suspicion testing when they suspect impairment on the job."

Whatever policy an employer adopts ought to reflect the company's individual circumstances, Shore said.

"Like any policy, the employer needs to look at what is my purpose in having this policy. If you're employing 100 creative web designers, you may or may not want to drug test because of the workforce you'll be hiring. If you're hiring 100 engineers who are going to be designing airplane parts, that's a lot different.

"And if you're hiring 100 people in Oklahoma versus 100 people in Portland, Oregon, there will be differences as well."

-- George Rede

grede@oregonian.com

503-294-4004

@georgerede