Oregon courts expand the employment rights of medical marijuana users
April, 2005
Oregon voters passed a ballot measure legalizing "medical marijuana" several years ago; this January, medical marijuana jumped into the spotlight for employers with a big ruling from the Oregon Court of Appeals. In Washburn v. Columbia Forest Products the Oregon Court of Appeals held that an employer may be required to offer an accommodation, including exemption from a company-wide drug testing policy, to an employee who uses medical marijuana. The case is being considered for review by the Oregon Supreme Court; in the meantime, employers are being inundated with accommodation demands.
The facts of the case are straightforward. The plaintiff, Washburn, was lawfully using medical marijuana to alleviate a sleeping disorder. He was placed on leave after failing several urine tests. Urine tests do not show current impairment, but only whether marijuana has been used. He asked his employer to accommodate his claimed disability by permitting him to take a test that would show whether he was impaired by his marijuana use while at work. The company refused and insisted that, before he could return to work, he submit a urine sample that met the company's testing standard. Because Washburn continued to use marijuana throughout his suspension, he was not able to test "clean," and he was fired.
Washburn sued, alleging that, contrary to the requirements of ORS 659A.112(2)(e) – Oregon's "little ADA" – the company failed to accommodate his sleeping disability. Two issues were presented on appeal: whether Washburn's "disability" should be judged taking into consideration the mitigating effect of medication; and whether Columbia Forest Products was exempt from providing an accommodation by a provision in the state medical marijuana law.
On the first question, the court rejected the rule announced by the Supreme Court in the context of the Americans with Disabilities Act that a person's "disability" must be judged taking into account any mitigation provided by medication. If the Washburn ruling stands, Oregon employers may have to determine whether an employee is "disabled" by gathering information on what impact the impairment would have on the employee's major life activities if the employee were not taking medication or other corrective treatment.
On the second point the court held that ORS 475.340(2), a provision of the law that exempts employers from having to make accommodation for "the medical use of marijuana in any workplace," does not mean that Washburn need not be accommodated. The court held that the term "use" does not include merely having marijuana in one's system. Therefore, according to the court, an employer must consider whether there are reasonable accommodations – including permitting an employee to take a different kind of drug test – that would allow the employee to continue working. It was not permissible to simply fire Washburn for failing the urine test without considering other options.
Columbia Forest Products has asked the Oregon Supreme Court to review this ruling. However, in the meantime, Oregon employers should treat medical marijuana like any other disability issue. If an issue arises with an employee who has a medical marijuana card, employers should consider the following options:
- Enter into the "interactive process" with the employee; this is the dialogue mandated by the ADA and Oregon law between the employer and the employee about what accommodations are needed, and what are reasonable.
- Ask the employee for information about the disability, and for confirmation that the employee is certified legally for taking medical marijuana.
- Assess whether the employee's job can be performed by someone with any level of impairment due to marijuana use.
- Assess if alterations could be made to the company's testing policies or the employee's job duties that would allow the employee to continue to work. It may be necessary to consult with experts regarding the effectiveness of alternate tests.
- Make a plan to handle the situation, and get the employee to agree to the plan in writing. Consider discipline if he/she does not follow the plan.
Accommodating disabilities can be a mine-field for employers, especially in a new area of law such as medical marijuana. Employers should consider consulting their legal advisor for assistance on this topic.