Arbitrator reinstates Lane County employee fired for medical marijuana use

By Saul Hubbard

In a rare ruling, an arbitrator has found that Lane County government erred in firing an employee for his off-duty use of medical marijuana late last year.

Michael Hirsch, a 60-year-old prostate cancer survivor, will be reinstated to his job as a senior programmer and systems analyst next week and given $21,550 in back pay for the six months since he was terminated.

Arbitrator Jeffrey Jacobs based his ruling on the fact that the county provided no evidence Hirsch had used marijuana at work or that his off-duty use hurt his job performance. Hirsch, hired by the county in early 2015, had received “a number of very positive messages and reviews” from supervisors, Jacobs wrote.

Under the union contract governing Hirsch’s position, “disciplinary action may be taken for activities that take place outside of county premises on off-duty time only when the employee’s ability and effectiveness to perform his/her job is impaired.”

Also, the county’s policy of having a drug-free workplace contains an exception if a substance is taken under the supervision of a licensed health care professional and “does not present a safety hazard or otherwise adversely impact an employee’s performance.” 

Moreover, Jacobs found that, even if Hirsch’s actions had been deemed a violation of county policy, his firing on his first offense “is far and away too harsh a punishment.”

In the past, the county has given only warnings or suspensions to several employees for their off-duty drug and alcohol use that in some cases resulted in criminal convictions, he wrote.

Jacobs’ ruling is unusual: private- and public-sector employers in Oregon and nationally have generally had wide latitude to fire workers who have tested positive for marijuana, as Hirsch did, whether or not a doctor has recommended its use.

Attitudes towards marijuana are increasingly shifting: 25 states now have approved medical marijuana programs, including Ohio this year, and Oregon is one of four states that has legalized recreational marijuana.

Still, Jacobs noted that his ruling was influenced by the “somewhat unique facts” of Hirsch’s case.

“The county (drug-free) policy is valid and on different facts may well yield a vastly different result,” he wrote.

The union contract language and the county’s past practices were key factors.

The county tested Hirsch for marijuana in November 2015, after two county human resources employees reported they smelled marijuana smoke on a jacket he was wearing at a staff training meeting. The county also alleged that Hirsch “grabbed a noticeably large handful of candy” when he arrived at the training late, citing a delayed bus. 

Hirsch tested positive — well above the cutoff point. But people can test positive for marijuana for at least a week after consuming it, long after its psychoactive effects have worn off. 

Hirsch said he legally used marijuana daily after work on the recommendation of a doctor because of lingering side effects from his lengthy and aggressive cancer treatment. Hirsch denied being impaired at work, saying his heavy jacket had trapped the smell from prior off-duty use. As a diabetic, he doesn’t usually eat candy, Hirsch said.

The county fired Hirsch on Dec. 23.

Jennifer Chapman, a lawyer for American Federation of State, County and Municipal Employees Local 2831, the union that contested Hirsch’s firing, said Jacobs’ ruling was “relatively narrow.” But, she said, it could still affect arbitration cases in Oregon for union-represented workers in the public and private sectors. 

“For a long time, many employers have believed that employers have a type of absolute immunity when they make employment decisions based on drug use including marijuana,” she said. “This is because the case law has been so favorable for them. The Hirsch case ... reminds employers that they can’t ignore fairness, humanity, and contract language when making employment decisions in the future.”

County officials can’t appeal the decision. In a statment, county spokesman Jason Davis said the county is required to be “a drug-free workplace” to receive certain federal money.

“While we value the unique situation of each of our employees, adherence to the drug-free status is crucial to Lane County’s ability to continually provide quality services to our public, both in terms of safety as well as funding streams from federal sources,” he said.

“Oregon law requires the arbitration process as the method for resolving a dispute like this one,” Davis added. “In this case, Lane County has participated in that procedure and it does respect and will adhere to the decision of the arbitrator.”

For Hirsch, the ruling was a surprise blessing. Financially depleted from lengthy treatment for his advanced cancer, Hirsch moved in with his mother in Rochester, N.Y., after he was fired. He was unable to find a job matching his training there, partly because of the news coverage his firing generated, he said. He signed up for federal food stamp benefits.

Hirsch said he couldn’t afford to apply for a new medical marijuana card in New York, so he’s once again had to deal with painful side-effects from his cancer treatment. He’s suffered from depression in recent months, he said.

“Here I am, instead of being a productive member of society, I’m becoming a ward of the state,” Hirsch said. “I can’t believe that, as a society, we’re going to criminalize people from taking medicine, especially related to life-threatening effects of cancer treatment.”

Hirsch on Wednesday said he hadn’t been optimistic that he would prevail against the county, largely because case law favors employers.

But Hirsch said he’s happy with the ruling. He’s already received his back pay and will soon move back to Oregon. Hirsch said he’s looking forward to resuming work for the county.

“It won’t be awkward from my side of things, but it may be awkward with those (county employees) who are ignorant of the facts and who feel they made a great effort to fire me and keep me fired,” he said.

Hirsch said he plans to visit a doctor in Oregon to see if he can take another type of medication for his symptoms. But, if nothing else works, he said he doesn’t “have much choice” but to use marijuana outside of work.

Jennifer Middleton, a Eugene employment attorney with Johnson, Johnson and Schaller, said it was unlikely that Hirsch’s ruling would impact other cases in Oregon, since it hinged in part on specific language in AFSCME’s contract with the county.

Other marijuana employment cases have generally revolved around whether employers must provide “reasonable accomodations” to workers who want to use medical marijuana for an illness or disability, under the federal Americans with Disabilities Act, she said. The courts have largely said “no,” freeing companies to fire those workers if they choose to do so.

“So few employees are governed by unions to begin with and probably relatively few (of those) have contract langugage like this,” she said.

But Middleton said the ruling “is a good example of an arbitrator looking to the facts of the case and seeing this particular employee wasn’t impaired, and so they shouldn’t lose their job.”

“That’s a principle that other employers ought to take to heart,” she said.