MMJ User Wins Appeal in Ore. Employment Dispute

By Patricia Grzywacz Walsh, Esq.
Source: FindLaw

A medical marijuana user who lost his safety-sensitive job because he tested positive for pot has won reversal of a state court trial ruling that favored his employer, according to a first-impression ruling by the Oregon Court of Appeals. The trial court's summary judgment for the employer was inappropriate because disputes of material fact existed over the application of Oregon anti-discrimination law, according to the appeals court.

According to court documents, Columbia Forest Products Inc. employed Robert Washburn as a millwright at an Oregon facility. Washburn was required, among other things, to maintain dangerous equipment and the company classified his position as "safety-sensitive." Washburn took prescription medication to treat a sleeping disorder caused by muscle spasms.

In August 1999, Washburn's doctor prescribed medical marijuana for his sleeping problem and enrolled in Oregon's medical marijuana program. Once he received a registry identification card, he began smoking marijuana at night to help him sleep.

Columbia has an anti-drug workplace policy, prohibiting employees from reporting to work with a controlled substance in their body. An October 2000 urine sample revealed marijuana in Washburn's system and he was placed on leave of absence pending a clean drug test, the court documents said.

Washburn continued to smoke marijuana throughout his leave of absence, rendering him unable to pass the drug test. After the second positive test, Washburn was terminated pursuant to Columbia's anti-drug policy, according to the documents.

Washburn sued Columbia in an Oregon trial court, claiming that the company failed to accommodate his disability under Oregon law.

Columbia moved for summary judgment, arguing that Washburn was not a qualified individual with a disability under the state's anti-discrimination statute and that the Oregon Medical Marijuana Act does not require employers to accommodate medical marijuana users. The trial court granted the motion and Washburn appealed.

The state appeals court reversed. The court had to decide if available treatments, such as Washburn's use of marijuana, rendered his disability less than substantial. Under Sutton v. United Airlines, 527 U.S. 471 (1999), the U.S. Supreme Court ruled in an Americans with Disabilities Act case that "if a person uses mitigating measures that render that person less than substantially limited in a major life activity, the person is not a 'disabled person' under 42 U.S.C. § 12102(2)(A)."

This standard was utilized by the lower court when it concluded Washburn was not a qualified individual with a disability, based on the general principle that the state anti-discrimination law was to be interpreted the same way as the ADA.

The appeals court acknowledged that Oregon's disability law mirrored the federal ADA, under which Sutton was decided, but found that only certain provisions of Oregon's disability law were to be construed consistently with the ADA. The definition of a "disabled" person was not one of those provisions, according to the appeals court.

Once the appeals court reached that conclusion, it analyzed the state statute's definition of "disability" with respect to mitigating measures. The issue, as phrased by the appeals court, was whether the definition took mitigating measures into account.

Because the legislative intent behind the statute did not address mitigating measures, the appeals court concluded that under the statute's definition of disability, mitigating measures are not to be considered when determining if a major life activity is substantially limited.

Because the trial court erroneously considered mitigating measures when determining that Washburn was not a qualified individual with a disability, the appeals court concluded a genuine issue of fact existed as to whether Washburn met the state anti-discrimination statute's definition of disability. This aspect of the trial court decision was reversed.

Next, the appeals court examined the second rationale the trial court used to grant summary judgment in Columbia's favor, that pursuant to Section 475.340(2) of the Oregon Medical Marijuana Act, "[n]othing in [the OMMA] shall be construed to require ... [a]n employer to accommodate the medical use of marijuana in any workplace."

Based on that provision, the trial court agreed with Columbia that "use" under the statute included testing positive for marijuana.

Washburn contended that he never possessed marijuana at work and therefore never "used" marijuana at work. Under Section 475.302(7) of the OMMA, the "medical use of marijuana" includes "the production, possession, delivery, or administration of marijuana, or paraphernalia used to administer marijuana."

The appeals court agreed with Washburn's assertion, finding use outside of work did not amount to possession, based on State v. Daline, 30 P.3d 426 (Or. Ct. App. 2001), which held that once a person consumes a controlled substance, the person no longer possess the substance.

As a result, Washburn was not in "possession" of marijuana in the workplace when he tested positive for the substance, and the trial court erred in finding Columbia was not required to reasonably accommodate him because he possessed marijuana while at work.

The appeals court noted that whether a reasonable accommodation was required for Washburn was still in dispute, as there may be reasons why Columbia would not have to accommodate him, such as safety considerations. This aspect of the case was also remanded for trial.

Washburn v. Columbia Forest Products Inc., Nos. 0012-12516 and A116664, 2005 WL 56898 (Or. Ct. App. Jan. 12, 2005).

Disability Litigation Reporter
Volume 02, Issue 04

Note: Washburn v. Columbia Forest Products Inc.

Complete Title: Medical Marijuana User Wins Appeal in Ore. Employment Dispute

Source: FindLaw (US Web)
Author: Patricia Grzywacz Walsh, Esq., Disability Litigation Reporter
Published: February 1, 2005
Copyright: 2005 FindLaw
Website: http://www.findlaw.com/
Contact: http://www.findlaw.com/info/write/others_faq.html

 

By Lynda Hartzell, Special to the Business Journal
Source: Portland Business Journal

Oregon -- Among the challenging human resource issues for Oregon employers in the last decade is the question of how to handle employees who are legally using marijuana for disabling medical conditions such as cancer, glaucoma, AIDS or chronic pain. If an individual qualifies for a medical marijuana card under Oregon's Medical Marijuana Act, the individual likely qualifies for protection under Oregon's disability laws as those laws have currently been interpreted. In the past, employers relied on their drug-free workplace policies and the MMA language that states: "Nothing in the Medical Marijuana Act shall be construed to require an employer to accommodate the medical use of marijuana in any workplace," to keep marijuana out of the workplace.

The trial court in Washburn vs. Columbia Forest Products agreed that employers had the right to enforce drug policies with respect to any use of marijuana.

This year the Oregon Court of Appeals decided otherwise. In construing the above-referenced language from the MMA, the court held that employers may prohibit the use of marijuana at work; but the MMA does not relieve employers from any obligation to accommodate an employee's off-site use of medical marijuana. It further held that Oregon's disability laws require employers to evaluate whether they can reasonably accommodate an employee's use of medical marijuana -- regardless of any drug-free workplace policy.

This situation begs the question of how far an employer must go to accommodate a disability when an employee's choice of treatment is medical marijuana.

In the meantime, Columbia Forest Products has filed a petition for review with the Oregon Supreme Court. The Oregon Legislature is also considering an amendment to the disability laws that would clarify an employer's obligations to employ medical marijuana users. Until a legislative or judicial resolution is made, employers must tread carefully with an employee who presents a valid medical marijuana card.

Must employers accommodate medical marijuana use?

The answer to this question is, maybe. The Court of Appeals stated that its ruling is not a mandate to accommodate all medical marijuana users in the workplace. As with any disability, an employer must explore whether a reasonable accommodation could allow the employee to continue to work while using medical marijuana. This means that when an employee tests positive for the use of marijuana and is able to produce a valid medical marijuana card, the employer must initiate an accommodation dialogue before any termination decision can be made. The same would be true when an employee makes a voluntary disclosure of a medical marijuana card.

Like any disability accommodation situation, the factors that weigh in favor of or against a medical marijuana accommodation are not clear, leaving the employer in a risky situation. The standard is whether the accommodation is "reasonable," and whether something is reasonable is usually in the eye of the beholder.

Until the courts or the Legislature clarify the relationship between Oregon's medical marijuana and disability laws, employers should tread carefully when dealing with employees who are using marijuana to treat disabling conditions.

Strategies for Employers

What we do know about medical marijuana is that it is not prescribed. This means that no doctor monitors the use of marijuana, including the frequency, duration and potency of the drug. With this in mind an employer might consider the following prophylactic measures:

Adopt a zero-tolerance policy for drugs and alcohol. Be sure your drug and alcohol policy includes language that the presence of any controlled substance in an employee's body, as determined by a positive drug screen test, is a violation of company policy, subject to proof that use of a controlled drug, including marijuana, is medically authorized.

Identify when employees will be subject to drug testing, such as testing for pre-employment, reasonable suspicion, any workplace injury that causes property damage or personal injury that results in time loss, and/or at random.

If an employee's drug test is positive and the reason can be verified by a current medical marijuana card, then require that the employee obtain a medical certification from his or her treating doctor releasing the employee to work while using medical marijuana. This policy provision must also include a similar requirement for employees on prescription drugs that may impair their ability to perform the requirements of the job. One way to keep the policy even-handed is to mandate a medical certification for any employee using a Schedule I or II drug as defined under the Controlled Substances Act.

Provide the treating doctor with a copy of the employee's job description so the doctor can be appropriately informed of the job requirements before releasing the employee to work while using medical marijuana (or any other Schedule I or II drug). If the employee is working in a safety-sensitive job, you should label the job as being "safety sensitive."

Request the treating doctor to certify any medical restrictions, if the doctor deems it appropriate to release the employee to work while using marijuana. This should include whether a transfer to a non-safety-sensitive position is medically recommended.

Require the employee to update the medical certification periodically. This cannot be more frequent than every 30 days.

State in your policy that any abuse of medically authorized or prescribed drugs is a violation of the company's drug and alcohol policy.

Develop consequences for a positive test for illegal drugs. These may include termination, suspension, participating in an Employee Assistance Program or the use of a Last Chance Agreement.

Respect Employee Privacy

Although you may require an employee to report the use of a drug or marijuana for medical treatment, you may not require that the employee or treating doctor disclose details of the medical condition or the specific name of the drug (except in the case of marijuana, where the employee must provide a current state-issued card).

There is hope for a clear direction in the future. In the meantime, take each situation one at a time. With each case, you may find yourself taking a different direction.

Lynda Hartzell is a partner at Tonkon Torp LLP, where she specializes in employment and labor issues. Hartzell is representing Columbia Forest Products in its petition for review by the Oregon Supreme Court of the first case to test conflicting requirements of Oregon's Medical Marijuana and Disabilities acts.

Source: Portland Business Journal (OR)
Author: Lynda Hartzell, Special to the Business Journal
Published: August 15, 2005
Copyright: 2005 American City Business Journals
Contact: portland@bizjournals.com
Website: http://www.bizjournals.com/portland/
Link to article: http://cannabisnews.com/news/thread21034.shtml

 

By Charles E. Beggs, The Associated Press
Source: Associated Press

Salem, Oregon -- The Oregon Supreme Court says it will review an appellate court ruling that suggests employers make allowances for workers who use medical marijuana. The case involves Robert Washburn, a former millwright at the Columbia Forest products plant at Klamath Falls. Washburn had a state-issued card allowing him to use marijuana to ease neck and muscle pain that disrupted his sleep. But the company, which prohibited workers from coming to the plant with controlled substances in their system, fired Washburn in 2001 after he failed several urine tests.

Washburn sued the company, claiming it should have made an allowance for his disability.

A circuit court dismissed the lawsuit, citing a provision in the state medical marijuana law that employers don't have to "accommodate the medical use of marijuana in the workplace."

The appeals court disagreed, saying the test results didn't establish that Washburn had used the drug at work. Moreover, the appeals court said the lower court should decide whether, under the circumstances of the case, Washburn's employer should have had to allow his medical marijuana use.

The Supreme Court is to hear arguments in the case on Nov. 7.

Business groups say employers are highly concerned over the prospect of having to tolerate workers who use drugs.

J.L. Wilson, Oregon director of the National Federation of Independent Business, said Wednesday that the appellate court's "absurd" ruling "clearly took away the ability of employers to manage workplace practices and keep people out of harm's way."

But David Fidanque, executive director of the Oregon arm of the American Civil Liberties Union, said employers should have to make allowances for workers using marijuana legally to relieve medical problems.

"It's important for the law to understand that medical marijuana patients are disabled Oregonians who are entitled to accommodations like other disabled people," he said.

Businesses, however, fear the appeals court ruling opens the door for unreasonable requirements.

"I don't think even proponents of medical marijuana thought we would have to accommodate it in the workplace," said Lisa Trussell of Associated Oregon Industries, a major business lobbying group.

"An employee could take a break in some parking lot and smoke medical marijuana and come back to work, and unless I could prove impairment, I couldn't do anything about it," she said.

Complete Title: Supreme Court Considering Workplace Medical Marijuana Issue

Source: Associated Press (Wire)
Author: Charles E. Beggs, The Associated Press
Published: September 15, 2005
Copyright: 2005 The Associated Press
Link to article: http://www.cannabisnews.com/news/thread21117.shtml