What's New!

Oregon Employers High on Medical Marijuana Decision

On April 15th, 2010 the Oregon Supreme Court decided Emerald Steel Fabricators v. Bureau of Labor and Industries and handed employers a victory in the long-running medical marijuana battle. The court held that employers are not required to accommodate an employee's use of medical marijuana.

The employee in this case was hired on a temporary basis as a steel press operator. After a few months of work, the employee advised his supervisor that he had a medical marijuana card and inquired whether this would impact his ability to become a permanent employee. The employee was terminated about a week later. The employee filed a charge of discrimination alleging he was disabled and that the employer failed to accommodate his disability.

The Bureau of Labor and Industries (BOLI) determined that the employer failed to reasonably accommodate the employee and failed to engage in the interactive process required by state and federal law. The Oregon Court of Appeals upheld BOLI's decision. The Supreme Court reversed, finding that medical marijuana, although excluded from state criminal statutes, was still an illegal drug under federal law. The court reasoned that because state disability law provides that illegal drug users are not entitled to protection, an employer need not accommodate an employee's use of medical marijuana. Further, there was no obligation to engage in the interactive process because of the illegal nature of the employee's activities.

Following this decision, an employee who uses illegal drugs, including medical marijuana, is not protected by Oregon's disability discrimination laws (or the ADA). Employers can apply zero-tolerance drug polices, disciplining those who violate the policy and refuse to hire applicants that fail drug screens, regardless of medical marijuana registry status. We recommend that such a policy be issued in writing to applicants and employees and that employers clearly indicate that medical marijuana is prohibited as is any other controlled substance. The policy must then be applied in a consistent manner.