Pubdate: Wed, 21 Apr 2010
Source: Oregon Daily Emerald (U of Oregon, OR Edu)
Copyright: 2010 Oregon Daily Emerald
Contact:  http://www.dailyemerald.com/
Details: http://www.mapinc.org/media/1518
Author: Ian Geronimo

RULING SAYS WORK, WEED MAKE FOR AN UNHOLY PAIR

Oregon Supreme Court Ruled That Firing Employees in OMMP Doesn't 
Count As Discrimination

The wait is over for a definitive answer regarding whether state 
employers are required to accommodate employees' medical marijuana 
use in the workplace.

Last week, the Oregon Supreme Court ruled that employers are not 
obligated to accommodate medical marijuana use in the workplace, 
rendering employees currently using medical marijuana unprotected by 
state discrimination laws.

The case, Emerald Steel Fabricators v. Bureau of Labor and Industry, 
involved a local company firing an employee who used medical marijuana.

According to the court docket on the case, the employee, who suffered 
from nausea, stomach cramps and vomiting, reported using marijuana 
medicinally one to three times a day throughout a 90-day period 
working as a part-time drill operator. He was in the midst of a trial 
period that preceded being hired on as a full-time employee.

The employee was not suspected of marijuana use by his supervisor and 
said he never smoked on the job. A week after disclosing his medical 
condition, in the interest of being hired full-time, he was fired in 
accordance with the company's drug policy, despite being an Oregon 
Medical Marijuana Program cardholder.

The decision to favor employers over OMMP cardholders comes as an 
assertion of federal drug-free workplace programs' legitimacy over 
the protection provided by the state medical marijuana program.

"Because neither the Oregon Medical Marijuana Act nor any subsection 
thereof gives permission to violate the Controlled Substances Act or 
affects its enforcement, the Oregon act does not pose an obstacle to 
the federal act necessitating a finding of implied preemption," a 
summary of the ruling states.

The defendant said of the accommodation of medical marijuana use: "It 
is not legal under state law because the Supreme Court has ruled that 
legalization of marijuana is preempted by federal law. This obviously 
invalidates Oregon's Medical Marijuana Act."

The decision is consistent with court rulings in other states with 
medical marijuana laws, including California, Montana and Washington, 
according to the National Organization for the Reform of Marijuana Laws.

Brad Avakian, chief of the Bureau of Labor Industries (BOLI), which 
enforces disability law and other employment protections, rebutted 
the logic behind the court's decision in a press release the day of the ruling.

"As Oregonians, we have always believed strongly in our ability to 
determine the right public policy within our own borders," he said. 
"That makes today's decision all the more troubling, because it so 
seriously undercuts the law that Oregonians put in place, by 
initiative petition, in 1998."

John Sajo, director of Voter Power, the group that got a 1998 
initiative onto the ballot that allowed the use of medical marijuana 
in Oregon, downplayed the significance of the ruling.

"Just because the Supreme Court gave (employers) the right to fire 
doesn't mean employers are going to fire productive workers," Sajo 
said. "We do think this a very unfortunate decision - it ignores 
state rights, ignores the voters and allows discrimination against 
patients who find marijuana to be the most effective medicine for 
treating their ailment."

Bob Estabrook of BOLI said the ruling had definitively reduced the 
bureau's role in protecting OMMP cardholders from discrimination on 
account of their disabilities.

"Our role is certainly curtailed, and it may really be pretty much 
eliminated by this ruling," Estabrook said.  "It sounds like the 
issue is settled as far as employment discrimination goes. Apparently 
we're not going to be in the business of protecting those workers 
anymore because the Supreme Court says we can't."

Estabrook was not certain what the role of BOLI would be in the new 
medical marijuana landscape, but he said the potential for an appeal remains. 
- ---
MAP posted-by: Richard Lake