Oregon Supreme Court Weeds Out Medical Marijuana Accommodation Claims in the Workplace

Oregon Supreme Court Weeds Out Medical Marijuana Accommodation Claims in the Workplace

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.

Excerpt:

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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Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Ore. 159, 230 P.3d 518 (2010)

ORS 475.300

ORS 475.309

ORS 475.340

Washburn v. Columbia Forest Prods., Inc., 197 Ore. App. 104, 104 P.3d 609 (2005)

ORS 659A.112

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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.