On April 14, 2010, the Oregon Supreme Court filed its opinion in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries. In short, it would appear that employers are not required to accept marijuana use as a "reasonable accommodation" for a disability.
Central to the opinion was the confusing interplay between federal and state law regarding the Oregon Medical Marijuana Act. The Oregon Medical Marijuana Act has been in effect since 1999. In Oregon, a person with a "debilitating medical condition" may be issued a registry identification card that allows that person to possess up to six mature plants and 24 ounces of marijuana for their own personal use. ORS 475.320. A person with a registry identification card is exempt from criminal prosecution for possession, delivery or production of marijuana, aiding and abetting another in any of those listed acts, or any other criminal offense in which possession, delivery, or production of marijuana is an element, subject to certain conditions. Oregon is one of only 14 states in the nation that have legalized medical marijuana.
At the national level, marijuana is still an illegal controlled substance, and federal law trumps state law. The federal Controlled Substances Act, 21 USC 801 et seq., lists marijuana as a Schedule I controlled substance: a substance with a high potential for abuse, no accepted medical use, and not considered safe for use in medically supervised treatment.
The plaintiff in the case, Emerald Steel, manufactures steel products. In January 2003, it hired an employee on a temporary basis who held a medical marijuana card for the treatment of anxiety, panic attacks, nausea, vomiting, and severe stomach cramps that prevented the employee from eating. The employee used marijuana one to three times daily, although not at work. Emerald Steel was considering hiring the employee on a permanent basis. The employee knew that passing a drug test would be a condition of permanent employment, and told his supervisor that he had a registry card and explained his medical condition. A week later, Emerald Steel discharged the employee, who filed a complaint with the Bureau of Labor and Industries (BOLI).
The employee alleged that he had been discriminated against because of a disability in violation of ORS 659A.112, which prohibits employers from discriminating against otherwise qualified employees because of a disability. The statute also requires employers to make reasonable accommodations for employees with disabilities unless it would pose an undue hardship on the employer.
BOLI filed formal charges against Emerald Steel, alleging that Emerald Steel discriminated against the employee because of his disability and failed to reasonably accommodate the employee's disability. In its answer, Emerald Steel pointed out that the statute must be interpreted consistently with the federal Americans with Disabilities Act (ADA). The ADA does not protect persons engaged in the illegal use of drugs. Therefore, Emerald Steel argued that because marijuana is a controlled substance at the federal level, the ADA does not apply to persons using medical marijuana. The Oregon Supreme Court agreed.
In response, BOLI argued that Emerald Steel failed to engage in a "meaningful interactive process" as required by Oregon law as the first step in making a reasonable accommodation. The court held that, because the employee was using an illegal drug, the employer was not required to engage in any process or otherwise accommodate the employee's use of medical marijuana.
BOLI also argued that, because medical marijuana use is legal under Oregon law, it is not an "illegal use of drugs." After a long discussion of preemption and Congressional intent, the court disagreed, and found that because federal law and Oregon law are at odds, federal law must prevail.
Oregon law still requires employers to engage in a meaningful interactive discussion with any otherwise qualified employee with a disability, with the purpose of finding a reasonable accommodation of that disability. This case simply clarifies that, in the realm of reasonable accommodations, use of medical marijuana need not be tolerated.
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