Bituminous Insurance Companies
Release Date: May 27, 2010
The Oregon Supreme Court has ruled that Oregon employers do not have to accommodate an employee’s use of medical marijuana for treatment of a disability. Emerald Steel Fabricators v. Bureau of Labor and Industries, 2010 Ore. LEXIS 272 (April 14, 2010). The court reversed a lower court ruling, which held that the employer violated Oregon disability laws when it terminated an employee that disclosed that he was using marijuana for medical reasons.
The case involved a person who was hired on a temporary basis as a drill press operator. The person used medical marijuana daily, although not at work. He disclosed his marijuana use to his supervisor, when being considered for full-time employment. A short time later, he was discharged. The person then sued the employer for discrimination under Oregon state law. An administrative law judge ruled that the employer had violated Oregon law by failing to engage in an interactive process to accommodate the person's disability. This was affirmed by an appellate court.
A divided Oregon Supreme Court reversed the decision. The majority held that Oregon disability law does not protect an applicant or employee who is "currently engaged in the illegal use of drugs;" the use of medical marijuana was considered an "illegal use of drugs" under the law; and, that because the employer discharged the person for this reason, they did not engage in discriminatory conduct. In reaching this decision, the court made distinctions between the state lawfully "exempting" medical marijuana users from state criminal liability and "authorizing" conduct in conflict with the federal Controlled Substances Act (21 U.S.C.A. 812, as amended).
The decision brings the state in line with the supreme courts of California (Ross v. Ragingwire Telecommunications., Inc, 174 P.3d 200 (CA 2008)) and Montana (Johnson v. Columbia Falls Aluminum Company, LLC, 2009 MT 108N (March 31, 2009), unpublished decision). In Washington, a state appeals court has held that an employee discharged for medical marijuana use had no claim for wrongful discharge (Roe v. Teletech Customer Care Management, 216 P.3d 1055 (Wash. App. 2009). This decision is currently pending review before the state supreme court.
It is important for businesses to review all applicable law before addressing medical marijuana use in the workplace. Currently, fourteen states have laws permitting the use of medical marijuana. The scope and coverage of these laws vary. For example, Michigan law states, "...nothing in this law shall be construed to require…[a]n employer to accommodate…marihuana in any workplace..." (MCLA 333.2647( c) (2)) while Rhode Island law states "...no employer…may refuse to…employ...or penalize a person solely for their status as a cardholder..." (RIGL 21-28.6.4(b)). Many of the laws have not been tested. In addition, states may have other employment protection laws that may apply, e.g., Colorado law prohibits employers from terminating employment due to the employee's engaging in any lawful off-duty activity (C.R.S. § 24-34-402.5).
For a listing of state laws concerning medical marijuana use and other states with pending legislation or ballot measures to legalize medical marijuana, see http://medicalmarijuana.procon.org/.
COPYRIGHT ©2010, ISO Services Properties, Inc.
The information contained in this publication was obtained from sources believed to be reliable. ISO Services Properties, Inc., its companies and employees make no guarantee of results and assume no liability in connection with either the information herein contained or the safety suggestions herein made. Moreover, it cannot be assumed that every acceptable safety procedure is contained herein or that abnormal or unusual circumstances may not warrant or require further or additional procedure.