75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2449
House Bill 2881
Sponsored by Representative BUCKLEY; Representatives HOLVEY,
KOTEK, SHIELDS, TOMEI
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Establishes procedure for employment-related marijuana drug
testing and review of results by medical review officer.
Requires attending physician who provides documentation for
medical marijuana card to perform in-person examination of
patient.
A BILL FOR AN ACT
Relating to medical marijuana; creating new provisions; and
amending ORS 438.435 and 475.326.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 438.435 is amended to read:
438.435. (1) In addition to duties which a clinical laboratory
may perform under ORS 438.010 to 438.510, a laboratory is
authorized to perform appropriate tests, examinations or analyses
on materials derived from the human body for the purpose of
detecting substances of abuse in the body. All laboratories
performing the tests, examinations or analyses must be licensed
under the provisions of ORS 438.010 to 438.510 and must employ
qualified technical personnel to perform the tests, examinations
and analyses.
(2) In order to perform such tests, examinations or analyses,
the laboratory may examine specimens submitted by persons other
than those described in ORS 438.430 (1) and shall report the
result of any test, examination or analysis to the person who
submitted the specimen. When the substance of abuse test is for
nonmedical employment or pre-employment purposes, and a written
request is provided, the test result shall be reported to the
person from whom the specimen was originally obtained.
(3) When the specimen of a person tested for substances of
abuse is submitted to the laboratory and the test result is
positive, the laboratory shall perform a confirming test which
has been designated by rule of the Department of Human Services
as the best available technology for use to determine whether or
not the substance of abuse identified by the first test is
present in the specimen prior to reporting the test results.
{ + (4) When the substance of abuse test is a test for
nonmedical employment or pre-employment purposes and includes a
test for marijuana, the laboratory shall forward the marijuana
test result to the medical review officer designated by the
employer under section 2 of this 2009 Act. The laboratory may not
report a marijuana test result to the employer, but may report
the result of any other substance of abuse test in accordance
with this section. + }
{ - (4) - } { + (5) + } The department by rule shall set
standards for special category laboratories that engage only in
the initial testing for substances of abuse in the body,
including registration procedures for such laboratories and
personnel.
{ - (5) - } { + (6) + } The operator of a substances of
abuse on-site screening facility may use substances of abuse
on-site screening tests if the test results are not for use in
diagnosing or preventing disease and are not for use by
physicians, dentists or other licensed health care professionals
in treating humans. Any entity using the test shall pay a yearly
filing fee, not to exceed $50, and file a registration form as
provided by rule of the department that:
(a) States the current name and address of the entity, the
telephone number of the entity, if any, and the name of a contact
individual at each on-site facility operated by the entity; and
(b) Certifies that:
(A) The tests are being administered according to the federal
Food and Drug Administration package insert that accompanies the
test;
(B) The tests are being administered according to the
instructions of the manufacturer;
(C) Custody chain procedures are being followed;
(D) Operators of the substances of abuse on-site screening
facility are trained in the use of the substances of abuse
on-site screening tests by the manufacturer; and
(E) If the substances of abuse on-site screening facility
obtains a positive test result on a specimen and the entity
indicates that the test result is to be used to deny or deprive
any person of employment or any benefit, or may otherwise result
in adverse employment action, the same specimen shall be
submitted to a clinical laboratory licensed under ORS 438.110 and
438.150 or an equivalent out-of-state facility and the presence
of a substance of abuse confirmed prior to release of the on-site
test result.
{ - (6) - } { + (7) + } The department by rule shall set
reasonable standards for the screening by correctional agencies
of inmates within state and local correctional facilities and
offenders on parole, probation or post-prison supervision for
substances of abuse. The standards shall include, but not be
limited to, the establishment of written procedures and
protocols, the qualifications and training of individuals who
perform screening tests, the approval of specific technologies
and the minimum requirements for record keeping, quality control
and confirmation of positive screening results.
{ - (7) - } { + (8) + } If an initial test by a special
category laboratory under subsection { - (4) - } { + (5) + }
of this section or a special category screening under subsection
{ - (6) - } { + (7) + } of this section shows a result
indicating the presence of a substance of abuse in the body, a
confirmatory test shall be conducted in a licensed clinical
laboratory if the results are to be used to deprive or deny any
person of any employment or benefit. If a screening test of an
inmate of a state or local correctional facility is positive for
a substance of abuse, the inmate may be held in a secure facility
pending the outcome of the confirmatory test. If the confirmatory
test is positive, the inmate may be held in a secure facility
pending the outcome of any hearing to determine what action will
be taken.
{ - (8) - } { + (9) + } If any test for substances of abuse
is performed outside this state the results of which are to be
used to deprive or deny any person any employment or any benefit,
the person desiring to use the test shall have the burden to show
that the testing procedure used meets or exceeds the testing
standards of this state.
SECTION 2. { + (1) As used in this section:
(a) 'Employee' means an employee or applicant for employment.
(b) 'Medical review officer' means a physician licensed under
ORS chapter 677 who is responsible for receiving, reviewing and
reporting laboratory results generated when an employer performs
a drug test for marijuana on an employee.
(2) If an employer requires an employee to submit to a drug
test for marijuana, the employer shall designate a medical review
officer to receive, review and report the test result to the
employer. The medical review officer must be trained in the
assessment and treatment of substance abuse.
(3) If a medical review officer receives a test result that is
negative for marijuana from a laboratory as provided in ORS
438.435, the medical review officer shall report a negative
marijuana test result to the employer.
(4)(a) If a medical review officer receives a test result that
is positive for marijuana from a laboratory as provided in ORS
438.435, the medical review officer shall consult with the
employee to determine if the employee possesses a registry
identification card issued under ORS 475.309.
(b) If the employee does not possess a registry identification
card issued under ORS 475.309, the medical review officer shall
report a positive marijuana test result to the employer.
(c) If the employee possesses a registry identification card
issued under ORS 475.309, the medical review officer shall
consult with the employee to determine the employee's pattern of
marijuana use and the potential for impairment while the employee
is acting in the course and scope of employment.
(d) If, after the consultation required by paragraph (c) of
this subsection, the medical review officer determines that the
employee's marijuana use poses a risk to the safety of the
employee or others in the employee's place of employment, the
medical review officer shall report a positive marijuana test
result to the employer.
(e) If, after the consultation required by paragraph (c) of
this subsection, the medical review officer determines that the
employee's marijuana use does not pose a risk to the safety of
the employee or others in the employee's place of employment, the
medical review officer shall report a negative marijuana test
result to the employer. + }
SECTION 3. ORS 475.326 is amended to read:
475.326. No attending physician may be subjected to civil
penalty or discipline by the Oregon Medical Board for:
(1) Advising a person whom the attending physician has
diagnosed as having a debilitating medical condition, or a person
who the attending physician knows has been so diagnosed by
another physician licensed under ORS chapter 677, about the risks
and benefits of medical use of marijuana or that the medical use
of marijuana may mitigate the symptoms or effects of the person's
debilitating medical condition, provided the advice is based on
the attending physician's personal assessment of the person's
medical history and current medical condition; or
(2) Providing the written documentation necessary for issuance
of a registry identification card under ORS 475.309, if { + :
(a) + } The documentation is based on the attending physician's
{ + in-person examination of the applicant and + } personal
assessment of the applicant's medical history { - and - }
{ + , + } current medical condition { + and appropriate
treatment plan; + } and
{ + (b) + } The attending physician has discussed the
potential medical risks and benefits of the medical use of
marijuana with the applicant.
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