On April 15, 2010, the Oregon Supreme Court ruled that the statute prohibiting disability discrimination in employment does not protect medical marijuana users. The Court based its decision on ORS 659A.124, which states that the protections of the disability discrimination statute do not apply to employees "engaging in the illegal use of drugs if the employer takes action based on that conduct."
The case, Emerald Steel Fabricators, Inc., v. Bureau of Labor and Industries, originated after an employee who used medical marijuana told his employer, in advance of a drug test, about his medical marijuana card and his medical condition. A week later, the employer terminated the employee.
The Oregon Bureau of Labor and Industries (BOLI) investigated the employee’s complaint and found the employer had discriminated against the employee on the basis of his disability. After a hearing before a BOLI administrative law judge, the BOLI commissioner issued an order finding the employer had violated the statute by failing to provide a reasonable accommodation to the employee and by denying employment opportunities on that basis. The Oregon Court of Appeals affirmed that order, but the Oregon Supreme Court reversed it.
The Court found that the use of medical marijuana, though authorized by state law, was an “illegal use of drugs” under federal law, which pre-empts state law in these circumstances. The Court held that because the employee was currently engaged in the illegal use of drugs, and the employer discharged him on that basis, the protections of the disability discrimination law, including the obligation to engage in a meaningful interactive discussion, do not apply.
The Court’s ruling means that employers are allowed to terminate employees with medical marijuana cards who fail drug tests.
Recently, the Washington Supreme Court agreed to consider a similar case under Washington’s antidiscrimination statutes. (Roe v. Teletech Customer Care Mgmt.)