by Karin Jones
The Oregon Supreme Court has
confirmed that employers are not obligated to accommodate the use of medical
marijuana by disabled or other employees, holding in Emerald Steel Fabricators,
Inc. v. Bureau of Labor and Industries, 348 Ore. 159, 230 P.3d 518 (2010) that
federal law preempts Oregon's legislation authorizing medical marijuana use.
Introduction. Overruling an earlier Court of Appeals decision, the
Oregon Supreme Court held, in Emerald Steel Fabricators, Inc. v. Bureau of
Labor & Industries, that Oregon employers are not obligated to
accommodate employees' medical use of marijuana, even when that use is linked
to a disabling medical condition [Emerald Steel Fabricators, Inc. v. Bureau
of Labor & Indus., 348 Ore. 159, 230 P.3d 518 (2010)].
The Oregon Medical Marijuana Act. The Oregon Medical Marijuana Act
("OMMA") was established through the passage of a ballot measure in
1998 [see ORS 475.300 et seq.]. OMMA removed state criminal
penalties for people who use marijuana to address the symptoms of debilitating
medical conditions, pursuant to registry identification cards issued by the
Oregon Health Authority [see ORS 475.309]. OMMA includes the following
provision relevant to employers: "Nothing in [OMMA] shall be construed to
require . . . an employer to accommodate the medical use of marijuana in any
workplace" [ORS 475.340].
Washburn v. Columbia Forest Products: Accommodation Prior to Emerald
Steel. Despite language in OMMA providing that employers need not
accommodate medical use of marijuana in the workplace, Oregon employers were
required to do just that for a span of several years. In 2005, the Court of
Appeals of Oregon held that employers were obligated to accommodate the use of
medical marijuana by employees qualifying as "disabled" under
Oregon's disability law [Washburn v. Columbia Forest Prods., Inc., 197
Ore. App. 104, 104 P.3d 609 (2005); ORS 659A.112].
The plaintiff in Washburn, Robert Washburn, worked in a safety-sensitive
millwright position in which he operated heavy machinery. Washburn's employer,
Columbia Forest Products, Inc. ("Columbia") terminated his employment
after he tested positive for marijuana, which he regularly used to alleviate
muscle spasms affecting his ability to sleep. Washburn claimed that Columbia
failed to accommodate his disability under Oregon's disability law. The trial
court granted summary judgment in favor of Columbia, but the Court of Appeals
reversed that decision, interpreting OMMA's accommodation provision narrowly [see
ORS 475.340]. Specifically, the Court of Appeals held that OMMA only excuses an
employer from accommodating an employee's production, possession, delivery, or
administration of marijuana at the workplace. Because there was no evidence
that Washburn had taken any of those actions at the workplace--only that he had
used marijuana at some point in the two weeks preceding the drug test--the
Court of Appeals held that summary judgment in favor of Columbia was not
appropriate [Washburn, 197 Ore. App. at 112-117, 104 P.3d at 614-616].
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of the statutes cited in this article:
Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Ore. 159, 230 P.3d
Washburn v. Columbia Forest Prods., Inc., 197 Ore. App. 104, 104 P.3d 609 (2005)
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Karin Jones practices labor and
employment law at Stoel Rives LLP in Seattle, representing management before
the state and federal courts and administrative agencies. In addition to her
litigation practice, Ms. Jones advises employers on compliance issues. Prior to
joining Stoel Rives, Ms. Jones clerked at the United States Court of Appeals
for the Ninth Circuit and gained experience practicing employment law in both
government and private practice in Idaho.
Stoel Rives LLP is a U.S. law firm with a full suite of transactional and litigation
solutions for U.S. and international clients. Established in 1907, the firm has
nearly 400 attorneys operating out of 11 offices in seven states.
Representative clients include financial institutions, public and private
utilities, energy and renewable energy companies, developers, manufacturers,
retailers, hospitals, universities, agribusinesses, software companies, food
and beverage companies, charitable foundations, telecommunications and forestry
companies, among others. Stoel Rives represents businesses at all stages of
growth, from start-ups to Fortune 500 companies.