AOI Gains Critical Victory In Medical Marijuana Battle

On Thursday, April 15th, the Oregon Supreme Court handed employers a comprehensive victory in the long-running medical marijuana battle, deciding that employers need not accommodate an employee’s use of medical marijuana (Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries).  The decision now means that employers can be assured that they can consistently enforce their zero tolerance drug policies without regard to an employee’s medical marijuana registry status.

Associated Oregon Industries has been leading the charge for nearly eight years in the effort to make it clear that Oregon employers are not required to accommodate medical marijuana.  As part of that continuing effort, AOI filed an amicus brief with the Supreme Court supporting the position of Emerald Steel in this critical case.  AOI member Paula Barran of Barran Liebman LLP wrote and submitted the brief.

The Facts
The Emerald Steel case began when employee Anthony Scevers was discharged from his job as a steel press operator on the basis of his admission that he held a medical marijuana card and regularly smoked marijuana up to three times per day.  He filed a charge of discrimination with the Oregon Bureau of Labor and Industries (BOLI) alleging that Emerald Steel discriminated against him because of a disability and failed to accommodate him as required by state disability law. 

BOLI and Court of Appeals Rule For Employee 
BOLI issued an order in favor of the employee, ruling that the employer failed to reasonably accommodate Scevers’ disability and also failed to engage in a mandatory “interactive process” to investigative possible accommodations.  In June 2008, the Oregon Court of Appeals agreed with BOLI in a technical opinion that focused more on procedural issues than it did on the underlying issue of drug use in the workplace.

However, the decision gave comfort to medical marijuana advocates and left most employers in a state of confusion, unsure about the legal boundaries and what was permitted in the workplace.

Legislature Fails to Help Employers
While the Emerald Steel case was making its way through the court system, AOI appealed to the Oregon legislature for three consecutive legislative sessions to clarify that Oregon employers should not be required to accommodate medical marijuana.  In 2005, 2007 and again in 2009, AOI introduced common sense legislation to achieve this concept.  But in all three sessions, the Democratic leadership in the House and Senate sided with medical marijuana supporters over employers.

Despite the fact that both Washington and California protected employers from medical marijuana accommodation, Oregon stood alone as a state unwilling to consider the needs of employers and workers to maintain safe workplaces.  This, despite the best efforts of Representatives Mike Schaufler (D-Happy Valley) and Bruce Hanna (R-Roseburg) who were champions for employers and workplace safety on this issue.

Oregon Supreme Court Hands Employers Victory 
On Thursday, the Oregon Supreme Court did what the Democrat-controlled legislature failed to do and handed employers a victory by reversing the Court of Appeals in a 5-2 opinion and clearing up any uncertainties. 

The Court ruled that medical marijuana – although excluded from state criminal statutes under the OMMP program – was still considered an “illegal drug” under federal law.  Therefore, no employer could be forced to accommodate the use of an illegal substance because state disability discrimination law specifically says that illegal drugs users are not protected by the statute. 

The Court was crystal clear: “Under Oregon’s employment discrimination laws, employers are not required to accommodate an employee’s use of medical marijuana.”

What Does This Mean For Employers?  
The Emerald Steel decision could not be better for Oregon employers.  The highest court in the state has now said that employers need not accommodate medical marijuana users in the workplace.  Employers should feel free to consistently apply zero-tolerance policies, consistently disciplining those who violate the policy and refusing to hire those applicants who fail drug screens, regardless of medical marijuana registry status. 

AOI recommends that this policy be issued in writing to applicants and employees, and that employers clearly indicate that medical marijuana is prohibited just as is any other controlled substance.  Employers need not engage in any interactive process to determine whether the medical marijuana use should be accommodated.