United States: Oregon Court of Appeals Weighs in on Medical Marijuana and the Definition of Disability

On January 12, 2005, the Oregon Court of Appeals considered whether an employer must accommodate an employee's request to use medical marijuana and whether mitigating measures should be considered to determine if an employee is "disabled." Washburn v. Columbia Forest Products, Inc., No. A11664 (Or Ct App, January 12, 2005).

Columbia Forest Products ("CFP") employed Robert Washburn as a millwright. Washburn's work included maintenance of dangerous heavy equipment, and CFP classified his job as a "safety-sensitive" position. Washburn had been approved for participation in Oregon's medical marijuana program to alleviate muscle spasms that limited his ability to sleep. Washburn smoked marijuana before going to sleep each night.

CFP's drug policy prohibited employees from reporting to work with the presence of a controlled substance or illegal drug in their system. CFP tested Washburn pursuant to that policy, and although the test did not reveal whether he was under the influence of marijuana at the time, it did reveal that Washburn had recently used marijuana. Washburn asked CFP to accommodate him by allowing him to take a test that would indicate whether he was presently impaired by marijuana. CFP maintained its position that Washburn could not report to work with marijuana in his system, and CFP ultimately terminated his employment.

The court focused on ORS 475.340(2), which states that the Oregon Medical Marijuana Act (the "OMMA") does not require "[a]n employer to accommodate the medical use of marijuana in any workplace." The trial court had ruled that an employee with marijuana in his system was engaged in the "use" of marijuana, and that CFP thus was not required to consider a reasonable accommodation for Washburn under Oregon's disability discrimination laws. The court of appeals reversed the trial court's ruling, holding that the term "use" in ORS 475.340(2) means to produce, possess, deliver, or administer marijuana. The appeals court ruled that Washburn did not "possess" marijuana in the workplace because the term "possess" does not mean having a controlled substance in one's bloodstream. The court also ruled that the Federal Drug-Free Workplace Act does not prohibit a medical marijuana accommodation because it applies only to "unlawful" marijuana use, whereas Washburn's use of the drug was lawful under the OMMA.

The court of appeals also addressed an important broader issue: whether mitigating measures should be considered when determining if a person is "disabled" under Oregon's disability discrimination laws. A person is disabled if he or she has an impairment that "substantially limits one or more major life activities." ORS 659A.100(1)(a). Federal courts applying the Americans with Disabilities Act consider whether mitigating measures, such as medication or eyeglasses, render a person's impairment less substantial and thereby render the person not disabled. The court of appeals parted ways with the federal law and ruled that Oregon's statute requires an analysis of whether an impairment is substantially limiting without consideration of mitigating measures.

The court of appeals' ruling means that if an employee who is legally using medical marijuana requests an accommodation, an employer will have to perform the reasonable-accommodation analysis and determine (1) whether the employee is disabled and therefore entitled to a reasonable accommodation and, if so, (2) whether a reasonable accommodation exists. The court specifically noted that an employer might not always need to accommodate medical marijuana use. For example, if allowing the medical use of marijuana would create an undue hardship or a direct threat, then an accommodation would not be required. Employers must closely analyze an employee's request to use medical marijuana.

The court of appeals' decision regarding a determination whether an employee is disabled significantly affects the way an employer can make such determinations. Employees with impairments that can be controlled, such as diabetes, may now claim that they are disabled and may invoke Oregon's disability discrimination statutes both for protection from discrimination and to request reasonable accommodations. Each employee's impairment must be evaluated on a case-by-case basis to determine whether it substantially limits a major life activity.

Washington employers should remember that Washington law defines "disability" differently than federal law. In Washington, an employee generally need only show a medical record of an abnormality to be disabled. Washington law has no provisions allowing consideration of mitigating measures.

If CFP appeals the ruling, the Oregon Supreme Court may again address these issues. Until then, Oregon employers must be sure to evaluate whether an employee is disabled for purposes of state law and analyze whether an impairment substantially limits a major life activity without considering any mitigating measures. Similarly, if an employee requests an accommodation related to medical marijuana, an employer must analyze the request like any other request for a reasonable accommodation.

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