Thanks to Oregon AFSCME, a Lane County IT worker is back on the job six months after he was fired for off-the-clock use of marijuana.
Michael Hirsch, age 60, was terminated by Lane County two days before Christmas because his urine tested positive for marijuana.
But that’s because, on the advice of a doctor, he’d been using marijuana at night to deal with pain and cramping from having undergone chemotherapy and radiation for stage 3 prostate cancer. As detailed in a June 13 arbitrator’s ruling, there was never any complaint about Hirsch’s performance as a senior programmer and systems analyst for the county, nor any sign he was impaired on Nov. 12, 2015, the day he was ordered to take the drug test.
That day, according to Lane County attorneys, Hirsch was five to 10 minutes late to an off-site diversity training, and he grabbed some Halloween candy in a bowl by the door on the way in. Then, during small group exercises an hour into the training, a trainer walked by him and noticed the smell of burnt marijuana on his clothes.
“It was the smell on my fleece jacket,” Hirsch tells the Labor Press. “Apparently that material holds smells, and I had worn it outside when I took my medicine, so the smell stuck to it.”
The trainer called county HR, which ordered that Hirsch be removed from the training and drug-tested. Six weeks later, he was terminated for the positive test result.
At his union grievance arbitration hearing, co-workers testified that Hirsch acted normally before the training and participated normally once he was there. There was no safety issue, and no prior offense.
“The fact is I was never impaired at work, and they would admit that,” Hirsch says. But past cases had not gone well for employees who made that defense. Even though marijuana is now legal in Oregon for both medical and recreational use, case law continues to preserve employers’ rights to fire workers for drug test results.
[pullquote]The fact is I was never impaired at work, and they would admit that” — Michael Hirsch[/pullquote]“Employers have had a golden ticket to terminate employees for marijuana,” said Jennifer Chapman, the Oregon AFSCME staff attorney who defended Hirsch.
But Hirsch had rights under his union contract. AFSCME’s contract with Lane County requires “just cause” for discipline. It also specifically prohibits discipline for off-duty conduct — unless that conduct impairs the employee’s ability and effectiveness to perform his or her job. And the contract requires that managers use a progressive discipline process: Discipline starts with verbal and written warnings, not with termination. Finally, Lane County has a policy against drug use, but even that policy has an exception for doctor-prescribed drugs. All of that made a difference in arbitration.
“Thank God for the union,” Hirsch says.
AFSCME Local 2831 stood by Hirsch throughout, trying to shame Lane County into not firing him, then filing a grievance, voting to take it to arbitration, and raising and contributing money to help him with the lost income.
Hirsch says he was wiped out financially, first by his medical bills, and then by his firing. After losing his employer-provided health insurance, which he needed to stay on top of his medical condition, he ended up enrolling in Medicaid and food stamps and moving in with his mother in Rochester, New York.
Now Hirsch is back in Eugene. And today is his first day back on the job. Besides reinstatement, the arbitrator ordered Lane County to pay him $35,000 in back pay, of which he received $21,550 after taxes. As the loser of the binding arbitration, the county must also pay the expenses of the arbitration, almost $6,000. And that doesn’t count the taxpayer expense of county HR and legal staff who spent months trying to defend the firing of a cancer patient using a doctor-recommended drug outside of work.
Chapman, the attorney for Oregon AFSCME, says Hirsch’s win may help others in similar cases in the future: It makes it safer for future arbitrators to make decisions more in line with common-sense notions of fairness.
