• Oregon Supreme Court Won't Protect Medical Marijuana Users in the Workplace
  • April 29, 2010 | Author: Heidee Stoller
  • Law Firm: Ater Wynne LLP - Portland Office
  • In a divided opinion, the Oregon Supreme Court Wednesday cited federal preemption principles to hold that state employment discrimination laws do not require an employer to accommodate an employee's use of medical marijuana.  Justice Kistler wrote the majority opinion in Emerald Steel Fabricators, Inc. v. BOLI.  Justice Walter filed a dissent, joined by Justice Durham.

    Emerald Steel terminated an employee for using marijuana, even though the employee was authorized to do so under the Oregon Medical Marijuana Act.  The employee filed a complaint with BOLI alleging that the employer had discriminated against him by failing to make a reasonable accommodation for his disability as required by ORS 659A.112.  The employer responded that, under ORS 659A.124, it was not required to accommodate an employee who is "engaging in the illegal use of drugs."  Following appeal, the Supreme Court held that the use of medical marijuana was an illegal use of drugs, as defined by ORS 659A.122, because even if such use was authorized under Oregon law, it was prohibited by the federal Controlled Substances Act. 
     
    The court further held that neither of the exclusions in the statutory definition of "illegal use of drugs" supports the employee.  The first exclusion, for drug use authorized under state law, doesn't apply because the Controlled Substances Act preempts the section of the Oregon Medical Marijuana Act that authorizes the use of medical marijuana.  The second exclusion, for drug use "under the supervision of a licensed health care professional," doesn't apply because the Controlled Substances Act does not authorize use of marijuana under the supervision of a health care professional. The court held that the employee's use of marijuana was therefore illegal under ORS 659A.124, and the employer was not barred from terminating his employment.
     
    The court noted that its preemption holding applies only to the section of the Oregon Medical Marijuana Act that authorizes the use of medical marijuana.  It did not hold that the Controlled Substances Act preempts the provisions of the Oregon Medical Marijuana Act that exempt from state criminal liability the possession, manufacture, or distribution of medical marijuana.