Labor and Employment Law Alert: Oregon Court Dodges Medical Marijuana But Narrows “Disability”
5/4/2006

In February 2005, we told you about the Oregon Court of Appeals’ decision in Washburn v. Columbia Forest Products, which broadened the Oregon definition of "disability" and required employers to offer reasonable accommodation for medical marijuana users (see bulletin). Today, in a victory for employers, the Oregon Supreme Court overruled that decision, determining that the plaintiff, Robert Washburn, is not "disabled" under Oregon law and is therefore not entitled to accommodation (see the opinion).

Washburn, who worked as a millwright, claimed that he was substantially affected in the major life activity of sleeping because of muscle spasms in his legs that, without treatment, interfered with his ability to sleep. Washburn had taken prescription medication to alleviate the spasms but was later approved to use marijuana for that purpose, under Oregon’s Medical Marijuana Act. Washburn claimed that the marijuana was more effective than the prescription drugs he previously took. Terminated because he tested positive for marijuana use, Washburn alleged disability discrimination under Oregon law.

The Oregon Court of Appeals decided last year that Washburn was protected as "disabled," because without "mitigating measures" (in this case, marijuana) his ability to sleep was substantially limited. In today’s decision, the Oregon Supreme Court unanimously held that the Court of Appeals should have construed the Oregon definition of "disability" consistent with the federal Americans with Disabilities Act (ADA). The U.S. Supreme Court ruled in Sutton v. United Airlines, Inc., 527 US 471 (1999), that a person is not disabled under the ADA if a mitigating measure will alleviate an otherwise substantial limitation to a major life activity.

According to the Oregon Supreme Court, the similarities between Oregon’s definition of "disability" and the ADA’s definition indicate that the Oregon legislature intended the definition of "disabled person" to take into account mitigating measures that lessen an individual’s impairment. Washburn is not "disabled," because he is able to counteract his leg spasms and the resulting sleep problems by using prescription medication. While the unanimous opinion does not expressly address workplace accommodation of medical marijuana use, Justice Kistler issued an encouraging concurring opinion suggesting that the federal Controlled Substances Act preempts the state employment discrimination statute that would require an employer to accommodate an employee’s use of medical marijuana.

The Bottom Line for Employers

Today’s decision narrows who is "disabled" and thus entitled to reasonable accommodation under Oregon’s disability laws. Employees will not be protected if, with mitigating measures, they are no longer substantially limited. However, the Court did not decide whether medical marijuana use must be accommodated in the workplace.

For further assistance on this or other workplace accommodation issues, please contact your Stoel Rives Labor & Employment attorney.