Robert Washburn, an employee with Columbia Forest Products, suffered from muscle spasms in his legs that, left untreated, limited his ability to sleep. Washburn initially took prescription medication to alleviate the spasms so that he could sleep. His doctor subsequently approved Washburn’s participation in Oregon’s medical marijuana program. He began smoking marijuana in the evening before going to bed, and claimed that the marijuana was more effective in helping him sleep than the prescription medication he previously took.

Columbia Forest Products’ workplace drug policy prohibits employees from reporting for work with a controlled substance in their system. The test of Washburn’s urine detected the presence of marijuana (THC) in his system, indicating that he had used marijuana within a two to three week period prior to the test. The employer ended Washburn’s employment based on the positive drug test.

Washburn initiated a civil lawsuit against Columbia Forest Products, alleging that the employer had failed to accommodate his disability under ORS 659A.112(2)(e), which states: “It is an unlawful employment practice for an employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions, or privileges of employment because an otherwise qualified person is a disabled person. An employer violates (this provision) if the employer: (e) …does not make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled person who is a job applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.”

The civil court granted summary judgment to the employer and dismissed the case asserting, in part, that Washburn did not qualify under Oregon law as a disabled individual. The court reasoned: “[I]n this case[,] it’s undisputed that there is medication…which is a mitigating measure, other than the marijuana, and which deals with the Plaintiff’s (Washburn’s) problem; and, therefore, he is not disabled….[I]f there are mitigating factors and with mitigating factors the problem is alleviated, the person is not disabled under the act.”

Washburn appealed and the Court of Appeals reversed the trial court’s decision, holding that the employer was not entitled to summary judgment. The Court of Appeals disagreed with the trial court’s reliance on mitigating measures to define bona fide disabilities under ORS 659A.112 to 659A.139. The Appeals court reasoned that the Oregon law did not specifically define mitigating circumstances to be considered in the statutory definition of a disabled person and that it was beyond the scope of the court to interpret that silence by interjecting the consideration of mitigating factors.

The Oregon Supreme Court focused narrowly on this question, stating in the majority opinion: “Because we conclude that the question of plaintiff’s (Washburn’s) status as a disabled person is dispositive (definition: directed toward or effecting disposition of a case), we limit the scope of our inquiry to that issue.”

The Oregon Supreme Court’s decision upholds the trial court’s decision that mitigating circumstances are to be considered in deciding individually on a case by case basis, if a person qualifies as disabled under the Oregon statutes. The majority opinion states: “[W]e conclude that, because plaintiff (Washburn) can counteract his physical impairment through mitigating measures, his impairment does not, at this time, rise to the level of a substantial limitation on a major life activity. Consequently, we conclude that plaintiff is not a ‘disabled person’ for purposes of ORS 659A.112 to 659A.139. Because plaintiff is not a ‘disabled person’ under those statutes, employer had no statutory duty to accommodate plaintiff’s physical limitation in the manner sought by the plaintiff.”

Though the Oregon Supreme Court’s ruling does not directly address the employer’s responsibility to accommodate employees under the Oregon Medical Marijuana Act, it does clarify that under Oregon law, as under the Americans with Disabilities Act (ADA), mitigating measures should be considered when determining if an individual is disabled.

Justice Kistler did give an indication where the court may be headed if some future case focuses on the issue of the contradiction between the Oregon Medical Marijuana Act and the federal Controlled Substances Act. Kistler stated in an opinion not included in the majority opinion: “Federal law preempts state employment discrimination law to the extent that it requires employers to accommodate medical marijuana use…I agree with the majority that plaintiff is not a ‘disabled person’ who can invoke the employment discrimination laws. Even if he were, however, federal law still would preempt plaintiff’s claim that his employer must accommodate his medical use of marijuana…The federal Controlled Substances Act prohibits possessing, manufacturing, dispensing, and distributing marijuana. 21 USC 841(a),844…Plaintiff cannot use marijuana without possessing it, and the federal prohibition on possession is inconsistent with the state requirement that defendant accommodate its use. State law cannot require what federal law prohibits; when the two laws conflict, federal law controls.” Kistler makes the further point that though the Oregon Medical Marijuana Act has the effect of not allowing criminal prosecution for those using marijuana under a physician’s prescription, it does not require an employer to accommodate an employee’s use of marijuana.

These statements in a minority report do not have the force of law and are subject to further challenge under future cases considered by the court.

Bottom Line for Employers: