CommunityPam's House Blend

Oregon Supreme Court: Medical Marijuana patients who fail drug tests may be fired

“Radical” Russ with Blender Paul in SF at the National NORML Conference in San Francisco

Howdy, Blend! It’s been a while, between me returning from the National NORML Conference, writing and editing my article for High Times about the Conference, looking for employment, and preparing for the Million Marijuana March on Saturday (check your local city for times and places to march.)

Unfortunately, here in Oregon we have more reason to march than ever. There was a case in Oregon, Washburn v. Columbia Forest Products, that was decided today in the Oregon Supreme Court. The case involved a man (Washburn) who has prescribed medical marijuana for leg spasms. He tried other prescription drugs for the condition so he could sleep, but those drugs left him in a stupor the next day – not a good condition for someone working in a lumber mill! The marijuana he’d use at night would allow him a full night’s sleep and he could awake the next day rested and ready for work.

Well, Columbia Forest Products is a federal government contractor and as such they have a drug-free workplace program. They drug tested Washburn and they came up with a positive result for marijuana metabolites in his system. This only proves Washburn had used marijuana within the past four weeks, not that he was impaired on the job (and he never was). Washburn asked for other drug tests that might prove impairment, but Columbia refused and fired him.

Washburn took the case to court, saying that he was disabled and Columbia fired him unfairly for that disability. A trial court disagreed, saying Washburn wasn’t disabled, since he could take medications that ameliorated his condition. An appellate court overruled the trial court.

Today, the Oregon Supreme Court sided with the original trial court verdict. From the ruling (emphasis mine):

We allowed employer’s petition for review and now conclude that plaintiff is not "disabled" for the purposes of ORS 659A.112 to 659A.139.

Employer has a workplace drug policy that prohibits employees from reporting for work with a controlled substance in their system. … The particular type of drug tests that 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.

"[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 problem; and, therefore, he is not disabled, in my view, under the act."

With regard to Oregon employment law, the general rule is that an employer may discharge an employee at any time and for any reason, absent a contractual, statutory, or constitutional requirement to the contrary.

[T]he statutory scheme requires a determination whether the identified impairment "renders" an individual unable to perform a major life activity or significantly restricts the condition, manner, or duration under which that major life activity can be performed. In our view, that means that the legislature did not intend to categorize an impairment as substantially limiting if, for example, medication could ameliorate the effects of impairment such that the individual would be capable of performing the otherwise affected major life activity.

In this case, plaintiff argues that he is disabled by virtue of his leg spasms, a condition that he claims substantially limits one of his major life activities, i.e., sleeping. However, as the trial court noted below, it is undisputed that plaintiff is able to counteract those leg spasms and the resulting sleep problems by using prescription medication. As a result, we conclude that, because plaintiff 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 plaintiff.

In case legalese is not your strong suit, here’s how the ruling breaks down: If you use medical marijuana to treat a condition so you may be unimpaired enough to work, an employer may fire you if you fail a workplace drug test — because if you’re healthy enough to work, you’re not disabled enough to protect from firing.

See, the right thing for Washburn to do was to not take marijuana and instead stay on those expensive, liver-toxic, mind-numbing prescription medications, so he could be good and drowsy and uncoordinated while he worked on the lumber mill floor, presenting a safety risk to himself and his co-workers. At least then he wouldn’t be an unemployed pothead…

[Crossposted at Radical Writ… even with the presence of THC metabolites in my system…]

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