Employment and
Labor Law Team

Leader:Tamsen Leachman
Justin Aida
Bob Allen
Tim Bernasek
Jack Cooper
Dan Drazan
Elizabeth Knight
Irene Scruggs
Renee Stineman

APRIL 2010 v2

All Dunn Carney
E-news are available at our website

www.dunncarney.com

Go to News and Resources
________

Oregon Medical Marijuana—The Smoke Finally Clears

Over the past several years, compliance with Oregon’s Medical Marijuana Act and related law has been confusing for employers.  The uncertainties usually arose when an employee tested positive for marijuana and presented a “card.”  Several lower-court opinions appeared to require employers to engage in “interactive” discussion with the employee, to determine whether the use of medical marijuana might be a reasonable accommodation under the Americans with Disabilities Act.  This caused particular concerns to those employers who had adopted a “zero tolerance” with respect to drug usage.

On April 14, 2010, the Oregon Supreme Court finally resolved these troublesome issues, ruling that employers may terminate an employee who tests positive for marijuana, without any obligation to explore any underlying medical reason to satisfy ADA requirements. 

While the analysis in Emerald Steel Fabricators, Inc. v. BOLI was comprehensive, the result was fairly straightforward.  Finding that federal law “preempted” state law on these issues, the Court held that because marijuana usage is illegal under federal law (but not necessarily under Oregon law), any employee engaged in the illegal use of drugs is not afforded any protections under the ADA.  As such, there is no need for an employer to engage in any so-called “interactive process” with an employee to determine whether reasonable accommodation might be appropriate.

As a result of this decision, Oregon employers have the ability to terminate any employee who tests positive for marijuana, without the need to determine why the drug was being used, whether other medication might be a substitute for medical marijuana, etc.

This decision does not require employers to terminate employees in this type of a setting, nor does it prevent an employer from working with an employee in a setting where marijuana usage may be medically prescribed.  But it does remove any uncertainties caused by the ADA, and permits “zero-tolerance” employers to make decisions consistent with those goals. 

If you have any questions about this decision or the status of Oregon’s Medical Marijuana Act in the workplace, please contact Jack Cooper at Dunn Carney.