OREGON DISABILITY LAW AND OREGON MEDICAL MARIJUANA ACT

This past week, in Washburn v. Columbia Forest Products, the Oregon Court of Appeals issued two significant rulings in a case involving a worker who engaged in the “medical use of marijuana” under the Oregon Medical Marijuana Act. The worker argued that the employer failed to reasonably accommodate his disability under the Oregon disability law.

Whether a Person is Disabled is Determined without Considering the Mitigating Effects of Treatment

The court first held that when determining whether a person is disabled under Oregon law, it does not consider the effects of mitigating measures. Thus, under Oregon law, a person with poor eyesight which can be fully mitigated by corrective lenses may still be considered disabled. In so ruling, the court of appeals rejected the approach applied by the U.S. Supreme Court that a person’s disability is measured after the mitigating measure has been applied.

In Washburn’s case, he claimed he was disabled because he had difficulty sleeping. His condition was supposedly ameliorated by his marijuana use, for which he obtained a medical marijuana card. The trial court considered Washburn after the effect of the mitigating use of marijuana and ruled that he was not disabled. The court of appeals, however, reversed the trial court’s ruling and held that Washburn’s sleeping difficulties must be analyzed before the marijuana’s mitigating effects. Because he had sleeping difficulties without marijuana, a court or a jury could find that he was disabled.

Statute’s Prohibition of Marijuana Use at Work Does Not Include Being under its Influence

Next, the court of appeals applied the Oregon Medical Marijuana Act, which does not protect “the medical use of marijuana in any workplace.” The court, however, held that off-site use of marijuana was not the medical use of marijuana at work even if marijuana was still detectable in the person’s system at work. The court of appeals looked to the statute’s definition of “medical use of marijuana” and found that it included only “production, possession, delivery or administration” of the drug, but not being under its influence.

The court of appeals also rejected arguments that federal law preempts the Oregon Medical Marijuana Act.

The court of appeals then remanded the case to the trial court for a factual determination as to whether failure to permit the employee’s off-site use of marijuana violated the Oregon disability law, applying the concepts of reasonable accommodation, undue hardship and qualification for the position. This determination would normally be made by a jury.

Our Recommendations

This case will likely be appealed and may well be overturned. However, for the present, the safest course is to treat medical use of marijuana like any other prescription drug use.

The employer should engage in the interactive process and make an individualized assessment of whether (1) the worker is qualified to perform the work, (2) his use can be accommodated, (3) an undue hardship applies and (4) his use possesses a direct threat to his safety or the safety of others.

Remember that a reasonable accommodation may be giving the worker leave while he engages in the medical use of marijuana or reassignment.

For additional information, please contact us.