OR Court of Appeals Win

[Stoney Girl]

Oregon appeals court protects medical marijuanaUse away from job can't be basis for firing, court rulesBy William McCall - The Associated Press
June 12, 2008The Oregon Court of Appeals has ruled that an employer must make a reasonable accommodation for medical marijuana use for a disability.

In an opinion issued Wednesday, the appeals court upheld a ruling by the state Bureau of Labor and Industries. The agency said that Emerald Steel Fabricators in Eugene violated state laws barring discrimination against the disabled by discharging an employee who used medical marijuana.

A key issue was the fact the employee never used marijuana in the workplace – an issue the Oregon Supreme Court avoided in 2006 when it ruled against a registered medical marijuana user fired from his job at a Columbia Forest Products plant after urine tests detected traces of the drug.

Employers do not have to let patients smoke medical marijuana in the workplace. But the Oregon Medical Marijuana Act approved by voters in 1998 was unclear about whether employers must accommodate workers who use medical marijuana off the job.

In the opinion by Judge Timothy Sercombe, the Oregon Court of Appeals went back over the 2006 Oregon Supreme Court ruling to emphasize the Emerald Steel employee never used marijuana at work – like the worker in the Columbia Forest case.

The appeals court also noted the Oregon Supreme Court did not address some of the defenses raised in the earlier case, including the argument an employee could be affected by medical marijuana use while on duty or in "safety-sensitive positions."

Medical marijuana has been opposed by the construction industry. Associated General Contractors has lobbied for laws defining safety-sensitive jobs, including driving large trucks, handling explosives and other jobs listed as hazardous under state work safety laws.

Medical marijuana activist John Sajo says that during legislative hearings last year, nobody was able to identify a single case where a medical marijuana patient had caused a workplace accident or problem. He also said the vast majority of medical marijuana patients are too ill to work.

Oregon Judicial Department Appellate Court Opinions

 

[Boss]

Major Victory!!!!!!!!

 

[Dr. 215]

That is so awesome! Ill be living in Portland starting August so this is great to hear!

 

[ZedRules]

Hey Stoney Girl...thanks for the good news up in Oregon. This made my night! We are seeking the same protection here in California and ASA is pressing the State Assembly & Senate to protect the employed MMJ patient. This gives us greater incentive.

 

[Stoney Girl]

I can't stress the importance of the Americans with Disabilities Act enough in the medical marijuana community. As disabled people, we have civil rights that are protected by the ADA, and those protections have teeth: those who violate those rights can be fined heavily by the Feds. Here is what the court ruled in this case on the ADA issues:

3. ORS 659A.112(1) provides:
"It is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because an otherwise qualified person is a person with a disability."

ORS 659A.112(2) provides, in part, that an employer violates subsection (1) of the statute if it does any of the following:

"(c) The employer utilizes standards, criteria or methods of administration that have the effect of discrimination on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.

"* * * * *

"(e) The employer does not make reasonable accommodation to the known physical or mental limitations of an otherwise qualified person with a disability who is a job applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.

"(f) The employer denies employment opportunities to a job applicant or employee who is an otherwise qualified person with a disability, if the denial is based on the need of the employer to make reasonable accommodation to the physical or mental impairments of the employee or applicant.

"(g) The employer uses qualification standards, employment tests or other selection criteria that screen out or tend to screen out a person with a disability or a class of persons with disabilities unless the standard, test or other selection criterion, as used by the employer, is shown to be job-related for the position in question and is consistent with business necessity."

 

[Stoney Girl]

I asked an ADA consultant for an opinion on this case. Here is what he told me:

Having 14 years experience professionally consulting government and private businesses with the ADA I thought I should make a quick response.

ADA 101

First, the state cannot change the intent nor the written federal laws and regulations of the Americans with Disabilities Act (ADA). That is, the State must at least meet the federal requirements, and may exceed these with their own, but cannot lessen the Act.

Most people think of ADA as Parking and Ramps. Although these items are an important factor there is much more to the Act besides physical barriers. It is also about policies, procedures, and attitudes.

The ADA is a Civil Rights issue, not one of medications, treatments or drugs. The ADA simply states that persons with disabilities shall have equal access to Programs, Services and Activities otherwise offered to any other member of the public. To single out any type of treatment or disability is directly against the ADA. This is what the court stated and is in fact in line with Federal regulations which the state must adhere to. Violations come with stiff penalties and loss of federal funding.

To single out a type of treatment then singles out many disabilities as allowed by the MMJ program. Who would this affect (what type of disability are you singling out)? This is the same as putting MMJ program participants on the back of the bus (segregation). This type of thinking is exactly what the ADA is trying to abolish. Your first concern should be for the view you have on persons with disabilities. From my experience in assisting with compliance and training, I have found that attitudinal barriers are by far the biggest hurdle.

Violation of a Civil Right is not the answer and the Legislature cannot change this.

The real answer to this issue is to re-schedule medical marijuana so that a Doctor can properly prescribe it. This would then allow for the control and supply of MMJ rather than dealing in these grey areas.

As for the employer, the current Marijuana testing methods need to be reviewed. Current testing can show traces of the drug for up to 6 months after exposure. The effect of the drug only lasts for 1 to 4 hours depending on strength and dosage. In short there is no current test used generally by private employers that can detect if a person is "Under The Influence" of marijuana. This should be a primary concern that is addressed by private business sector and most certainly those big testing companies that make all the money from them (but have little interest in this area of development).

Perhaps the private sector can adopt what our military has learned about the value of "Impairment Testing" over a simple chemical analysis of the last 6 months of life to quantify if a person is Under the Influece of Marijuana or in fact "Impaired".

Mike Mullins (Co-Founder / CIO Disability Access Consultants, Inc.)

 

[PFlynn]

This is great info.

 

[chronicreform]

California 215 same issue: Recently the Ca.Supreme Ct. upheld the firing of an employee because of a dirty urine...BUT there is legislation pending that will protect the worker.Introduced by State sens.Patty Berg and Leno this bill will "clarify" the intent of Californias 215 and SB 420 laws already in effect.So FYI those of you who share this info...congrats to Oregon MM employees and hope the same for Californias disabled who face discrimination in the work place.BTW the proper civil Rights litigation is entitled 42 USC 1983 for ADA abuse...KaChing$$$ with punitative damages awarded.

 

[zolar]

maybe folks in Ca should file for due process and work comp etc ask
have yiu used alcohol in the last 28 days in addition to urines when injured....