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With two failed attempts to limit the use of medical marijuana in the workplace, business associations are taking another hit at the legislation in 2009. Only this time, they say, they’re even more fired up about the issue.

In June, the Oregon Court of Appeals sided with a temporary worker in a discrimination case against Emerald Steel Fabricators, which had refused to hire the worker due to his status as a medical marijuana cardholder. The decision shattered Oregon employers’ last hopes that the court system would resolve the issue, and they’re now concentrating their efforts on a legislative fix.

“The uncertainty if anything has gotten worse,” said Paula Barran, an employment attorney with Barran Liebman in Portland. “Everything that happened last time, just double it in terms of frustration.”

Oregon’s medical marijuana act, passed by voters in 1998, allows patients with debilitating illnesses to treat their symptoms without being in violation of state law. And in 2006, the Oregon Supreme Court ruled that an employer should be expected to accommodate a card-holding employee if he or she suffers from a disability that can only be treated by medicinal marijuana use.

But industry advocates argue Oregon’s medical marijuana act works against drug-free workplace policies that have become a standard for businesses in hazardous industries such as construction.

“Employers should have the ability to ensure safety on their jobs,” said John Rakowitz, a lobbyist for the Oregon-Columbia Chapter of the Associated General Contractors. “Think about the person standing next to somebody on a job site with that person perhaps impaired. They want to be safe and employers have a federal obligation to maintain a drug free workplace.”

In 2007, Senate Bill 465 offered a comprehensive legal fix to the medical marijuana act. Under the bill, employers would allow employers to enforce drug free workplace policies, regardless of whether an employee is a medical marijuana cardholder. The bill passed in the Senate, but failed in the House of Representatives.

A 2008 version of the bill, introduced in the special session by Rep. Peter Buckley (D-Ashland), was a pared down version of bills that failed in previous sessions. Unlike the previous bills, which would have applied to all Oregon employers, the 2008 version was limited to 11 jobs deemed hazardous by the Oregon Occupational Safety and Health Administration, including construction, law enforcement, forest services and some manufacturing.

But the bill never made it to the floor for a vote. It failed to garner support from some business associations, including the Associated Oregon Industries, which thought the bill made too many concessions. In some ways, the associations were holding out hope that the Court of Appeals would clarify the law and a legislative fix wouldn’t be needed, said Rich Meneghello, an employment attorney with Fisher & Phillips in Portland.

This time, the associations are banding together again to craft a comprehensive bill similar to the 2007 pot bill.

“I’m pretty certain we will see something in 2009 that’s not going to be a compromise,” said Meneghello. “It will exempt employers from having to accommodate those that show up with medical marijuana in their system.

“In a weird way,” he said, “I think the court of appeals decision in June could actually help businesses.”