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Monday, May 17, 2010

Employers Still Have No Duty to Accommodate Medical Marijuana

By: Tommy Eden, Attorney

In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the Oregon Supreme Court reversed a state administrative ruling that an employer violated Oregon disability laws when it terminated an employee who disclosed that he was using marijuana for medicinal reasons. With this decision the Oregon's Supreme Court has ruled that Oregon law does not require employers to accommodate the use of medical marijuana that is otherwise allowed under state law. This case brings Oregon in line with both California and Washington on how employers should respond to requests for disability accommodations premised on medicinal-marijuana use. No other State thus far has taken a contrary position.

Background: Emerald Steel hired a drill press operator (safety sensitive job) who was using medical marijuana as allowed under Oregon’s Medical Marijuana Law. The employee disclosed his medical marijuana use to Emerald Steel and he was terminated. He filed a charge of discrimination with the Oregon Bureau of Labor and Industries alleging that Emerald Steel discriminated against him because of a disability, failed to make reasonable accommodations, and failed to engage in the interactive process. In 2009, while the Charge was pending, Oregon disability law was amended to exclude consideration of mitigating measures in evaluating whether an employee is disable, in line with the ADAA of 2009.

Decision: The Oregon Supreme Court recited in its decision that marijuana use is categorically prohibited under federal law and observed that federal law directly conflicts with the Oregon Medical Marijuana Act because "Congress imposed a blanket federal prohibition on the use of marijuana without regard to state permission to use marijuana for medical purposes… While the state may lawfully "exempt" medical-marijuana users from state criminal liability, it may not "authorize" conduct that directly conflicts with federal law.” The Court held that Oregon disability law does not protect an applicant or employee who engages in the illegal use of drugs and that the Oregon Medical Marijuana Act must yield to federal law on what is illegal drug use. Finding that the Emerald Steel employee was not protected by the Oregon disability statute and Emerald Steel had no obligation to engage in an interactive process or to accommodate the employee's drug use, the Court held.

Other State Court Decisions: There are now 15 states with Medical Marijuana laws and most likely more to come. The Emerald Steel decision is in line with similar decisions from California and Washington. In Ross v. RagingWire Telecommunications (2008), the California Supreme Court held that California's Compassionate Use Act does not require employers to accommodate the use of medical marijuana Likewise, in Roe v. TeleTech Customer Care Mgmt. (2009), the Washington court of appeals found no implied cause of action under the Washington State Medical Use of Marijuana Act against an employer who refused to hire a prospective employee who failed a pre-employment drug test allegedly due to her medical use of marijuana.

Common Sense Counsel: Medical Marijuana Laws are a complex area of the law where multiple state and federal laws impact and often collide. The best risk reduction strategy is to have a well drafted state law compliant drug free workplace policy that addresses the issue in those states which have Medical Marijuana Laws. Otherwise your business could go up in smoke.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at