Last December, Lane County suspected Michael Hirsch of being under the influence of marijuana at work. Two county HR employees smelled marijuana on him, and noticed him “taking a large amount of candy” at a training. He was ordered to submit to a drug test, which he failed. In the subsequent investigatory meeting, Mr. Hirsch explained to HR that he was a medical marijuana patient due to treatment related to prostate cancer and that he used the drug under doctor recommendation to deal with side effects from his treatment. He repeatedly told them that he did not use at work, nor had the usage of the drug ever affected his performance –a fact backed up by numerous positive reviews. Despite that on December 23rd, 2015, the county terminated Mr. Hirsch.
In the vast majority of workplaces, that would be the end of the story. However, Mr. Hirsch is a member of Oregon AFSCME Local 2831, which represents the workers of Lane County. After his termination the Local filed a grievance, which was denied by the employer. It was at this time the Local and Mr. Hirsch decided fighting this in arbitration was their only choice. The case was assigned to Oregon AFSCME’s Counsel, Jennifer Chapman.
“Early on we realized this case was not about Marijuana, it was about off-duty conduct. It was also about fairness; the county did not factor in any mitigating circumstances around Mr. Hirsch’s health, or its own history of dealing with outside work behavior. Firing him in the manner they did just did not meet just cause,” according to Chapman. Mr. Hirsch, Chapman, and long-time Rep. Jim Steiner, put together a vigorous defense and presented the case to an arbitrator in early May.
However, in the lead up to this Mr. Hirsch’s circumstances got bleak. Due to the loss of income, he was forced to move back East with relatives, his treatment for his illness continued to be a hardship on him, and the media attention around his termination made getting employment impossible. “It was pretty tough, I struggled with depression and hopelessness. I really needed to win this case to clear my name and get back on track with my life.” said Mr. Hirsch. “I just tried to keep my spirits up the best I could.”
On June 13th, the Arbitrator, Jeffrey Jacobs, released his decision. “The grievance is SUSTAINED and the record of the discipline is ordered expunged and removed from the grievant’s record. The grievant is to be reinstated within 10 business days of this award with full back pay and contractual benefits...” A complete win for Mr. Hirsch and our Union. Mr. Hirsch received around $22,000 in net back pay and is currently on his way back to Oregon to resume work at the county.
While the ruling is narrow and focuses on the elements of the collective bargaining agreement, it’s safe to say that winning a case related to marijuana usage, even medical, is very rare. Employers, generally have a lot of latitude to punish on this issue. However, this case will hopefully provide some precedent moving forward for protecting worker’s rights for conduct outside of work.
In the end, Jennifer Chapman said it best, “We won because we fought for fairness and humanity, the exact opposite of what the county fought for.” For Mr. Hirsch the win was not only validation that he had done nothing wrong but also meant a second chance. “As a software engineer, having a union is rare. If I were not in a union I would have been out of a job and a ward of the state. Because I have a union, I have my life back.”
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