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Washburn v. Columbia Forest Products:
Good News for Employers in Oregon
By Joseph Vance,
Jenna L. Mooney and
Britney Colton
[May 2006]
Late last week the Oregon Supreme Court issued its decision in Washburn v. Columbia Forest Products, Inc., a much anticipated case regarding whether allowing marijuana use outside of the work place is a reasonable accommodation for purposes of Oregon's disability discrimination laws. As it turns out, employers will have to continue waiting for a definitive answer on the marijuana question. The Supreme Court did not reach the marijuana issue; rather, it decided the case on a broader and more important basis. The Supreme Court overruled the Court of Appeals and followed federal law, finding the definition of "disabled person" under the Oregon disability statute is to be construed in light of mitigating measures that counteract or ameliorate an individual's impairment.
In Washburn v. Columbia Forest Products, Inc., __ Or. __ (May 4, 2006), the plaintiff regularly used medical marijuana to counteract leg spasms that would otherwise keep him awake at night. Although plaintiff had used other prescription medications to treat the problem, he found marijuana was more effective in helping him sleep. The employer had a program for regular drug testing and the plaintiff tested positive for marijuana use. The particular type of drug tests that the employer used could indicate only whether a person had used marijuana within the two-to-three week span preceding the test; the tests were incapable, however, of ascertaining whether a person was drug-impaired at the time of testing. Plaintiff requested that his employer accommodate his condition by allowing him to take a different drug test, one aimed only at determining drug impairment. The employer rejected plaintiff's request and terminated plaintiff.
Plaintiff filed suit alleging the employer failed to accommodate his disability under Oregon's disability discrimination statute, ORS 659A.112(2)(e). The trial court followed federal law and granted the employer's motion for summary judgment, finding plaintiff was not "disabled" because he could alleviate his medical problems with medication other than marijuana.
The Court of Appeals reversed the trial court, and in direct conflict with federal law, held that "disabled person" under Oregon's statute was to be determined without reference to mitigating measures. The court further held that it was an issue of fact for trial whether allowing medical marijuana use outside of the work place was a reasonable accommodation.
The Oregon Supreme Court has now reversed the Court of Appeals' decision, holding the definition of "disabled person" must be construed in light of mitigating measures that counteract or ameliorate an individual's impairment. The majority of the Supreme Court did not, however, reach the issue of whether allowing medical marijuana use is ever a reasonable accommodation.
So, the good news for employers is that it is now settled that under both state and federal disability discrimination laws, whether an employee is "disabled" is to be determined with reference to mitigating measures. Unfortunately, there is still no definitive answer to the question of whether medical marijuana use is ever a reasonable accommodation. While it appears likely that the Oregon Supreme Court will eventually follow Judge Kistler's concurring opinion that federal law preempts any obligation to accommodate medical marijuana use, until the Oregon Supreme Court actually decides the issue, it will remain uncertain. In the meantime, employers who are faced with the question of accommodating marijuana use should carefully analyze the situation and consider consulting with an employment lawyer before making any decisions.
For more information, please contact:
This Advisory is a publication of the Employer Services Department of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.
Copyright © 2006, Davis Wright Tremaine LLP.
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