April 2010

Employers Do Not Have to Accommodate Medical Marijuana

On April 14, 2010, the Supreme Court of Oregon issued a decision in Emerald Steel Fabricators, Inc. v BOLI, holding that federal law preempts Oregon medical marijuana provisions, and employers can terminate an employee for use of marijuana even if the employee has an Oregon medical marijuana card.

Background Facts

The employee in Emerald Steel had a medical marijuana card properly issued under the Oregon Medical Marijuana Act (OMMA). He used marijuana medically at home 3 times per week; he did not use marijuana at work. He began working at Emerald Steel as a temporary drill press operator. After a period of time, the employee sought to be hired on a permanent basis. Knowing this would require a drug test, the employee disclosed that he was a medical marijuana user. Within a week of this disclosure, he was terminated.

Background Litigation History

The employee filed a charge with the Oregon Bureau of Labor & Industries (BOLI) claiming discrimination under Oregon’s disability statutes. BOLI found the employee to be disabled under Oregon disability laws, and determined the employer had violated ORS 659A.112(2)(e), (f) – failure to provide reasonable accommodations and engage in a meaningful interactive process. Although employer initially claimed the federal Controlled Substances Act made the ADA and Oregon’s disability law inapplicable to persons using marijuana, this defense was not actively argued because at the time, the Court of Appeals had issued its Washburn opinion holding that medical marijuana use had to be accommodated. In the interim, the Oregon Supreme Court overturned the Washburn opinion on other grounds. With this change in law, the employer then re-asserted the federal preemption argument on appeal to the Oregon Court of Appeals. When reviewing Emerald Steel, the Court of Appeals determined the employer had not preserved the preemption argument, so did not reach the federal preemption question.

The Court’s Holding

The Supreme Court of Oregon reversed the Court of Appeals, finding the employer preserved the preemption argument because it had stated that while its preemption defense was foreclosed by Washburn, it was not withdrawing the defense. The Court then went on to address the merits of the medical marijuana issue, finally giving employers a definitive answer on whether medical marijuana must be accommodated under state disability laws.

The Court majority (two justices dissented) held that ORS 475.306(1) is preempted by the federal Controlled Substances Act. ORS 475.306(1) is the provision of the OMMA that authorizes use of marijuana for medical purposes. The Court found that federal law clearly defines marijuana as an illegal substance without any medical purpose. The federal and state laws are in direct conflict, and the federal law thus trumps the state law. Because the employee in Emerald Steel was engaged in the use of an illegal drug, and discharged on that basis, he did not have any protections under Oregon disability laws, including provisions relating to the interactive process. The employer did not violate ORS 659A.112.

Emerald Steel has definitively answered the medical marijuana question for Oregon employers. Medical marijuana can be treated like any other illegal drug, and does not have to be accommodated, even for employees who have disabilities and medical marijuana cards.

Employers are encouraged to review their drug testing programs and drug-free workplace policies in light of this decision. SBH attorneys are happy to answer any questions you may have about the Court’s decision. For those interested, the full opinion can by found at http://www.publications.ojd.state.or.us/S056265.htm.