Medical Marijuana Issues Still Unresolved.

On May 4, 2006, the Oregon Supreme Court issued its long awaited opinion in Washburn v. Columbia Forest Products, a controversial case in which the Court of Appeals previously suggested that employers might have an obligation to accommodate an employee’s use of medical marijuana in the workplace.  Although the Supreme Court’s opinion did not clear up that issue, the Court’s opinion did signal a victory for employers in the area of disability accommodation.

Mr. Washburn was a millwright who used medical marijuana to reduce leg spasms that interfered with his sleep.  When an employer-administered drug test detected marijuana in his system, Mr. Washburn was terminated for violating the employer’s drug policy.  When Mr. Washburn’s case was presented to the Court of Appeals, the two issues in the case were (i) whether his leg spasms were a disability, given that they were controllable with medication; and (ii) whether the employer was required to reasonably accommodate his disability by allowing him violate the employer’s drug policy. 

The Court of Appeals concluded that Mr. Washburn’s condition did in fact constitute a disability, even though his use of medication alleviated the symptoms of his condition.  That ruling was significant, because it contradicted how federal courts have interpreted the federal counterpart to Oregon’s disability discrimination statute – the Americans with Disabilities Act (ADA).  Specifically, courts interpreting the ADA have ruled that employers may consider mitigating measures when determining whether or not an employee is disabled.  Thus, for example, under the ADA, an individual’s poor eyesight would not be considered a disability if that condition could be alleviated through the use of eyeglasses or contact lenses.  In Oregon, however, the disability determination would have to be made without regard to whether the employee’s vision could be corrected through such devices.

In overruling the Court of Appeals holding to that effect, the Oregon Supreme Court concluded that Oregon should follow the federal law framework, and that Mr. Washburn did not have a disability because he could control his leg spasms with prescription medication.  The court’s ruling is a victory for employers because it makes it more difficult for employees to claim they are disabled when there are mitigating measures that may resolve the impairment. 

But the Supreme Court’s decision is significant for another reason.  In particular, although the court did not rule on the second issue before the Court of Appeals -- whether an employer is required to reasonably accommodate an employee’s disability by allowing him violate the employer’s drug policy – it did suggest how it might rule on that issue in the future.  In particular, in a non-binding opinion one of the court’s justices addressed the issue of whether allowing medical marijuana at work may be required as a reasonable accommodation.  The justice disagreed with the Court of Appeals’ holding that employers could be required to accommodate medical marijuana, and instead reasoned that because marijuana is an illegal drug under federal law, and state law cannot require what federal law forbids, employers cannot be required to accommodate medical marijuana.  Thus, even though that concurring opinion is not considered binding, it may signal how the court will resolve that issue in the future. 

The full text of the Washburn opinion is posted on the Supreme Court's website, (http://www.publications.ojd.state.or.us/S52254.htm).

If you have questions, please do not hesitate to contact the employment advisors at Hershner Hunter, LLP: Andrew G. Lewis and Amanda M. Walkup.

 

This memorandum provides general information and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. If you have specific legal questions, you are urged to consult with a lawyer.