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Medical Marijuana

Oregon Court of Appeals Upholds BOLI Determination That Employers Must Reasonably Accommodate Employees' Medical Marijuana Use; But Stay Tuned...
A Ball Janik LLP Employment Law Update

On June 11, 2008, a three-judge panel of the Oregon Court of Appeals affirmed a BOLI determination that employers must reasonably accommodate medical marijuana use; but the Court of Appeals upheld BOLI's determination on a technicality.

The case arose when a temporary employee advised his supervisor at Emerald Steel Fabricators, Inc. that he had a medical problem, possessed an Oregon medical marijuana card and used marijuana. One week later, the employee was told his services were no longer needed. The employee filed a BOLI complaint, which proceeded to hearing. The administrative law judge concluded that Emerald Steel Fabricators failed to accommodate the employee's use of medical marijuana although obligated to do so and issued an award in favor of the employee.

Emerald Steel Fabricators appealed to the Oregon Court of Appeals, which yesterday affirmed the BOLI determination. The Court of Appeals decision, however, was based upon its conclusion that the employer had not adequately raised a number of defenses before BOLI and could not do so for the first time on appeal. Specifically, the Court of Appeals ruled that the employer had not preserved its argument that the employer was not obligated to accommodate medical marijuana use because that use is illegal under federal law.

Contrary to some reports, the opinion does not establish that employers must make a reasonable accommodation for medical marijuana use. Once again, the Oregon appellate courts have sidestepped that question. What is an Oregon employer to do? Stay tuned. Eventually, this issue will be squarely decided by an Oregon appellate court. In the meantime, Oregon employers desiring to take a conservative approach, which minimizes the risk of employment claims, should treat medical marijuana like any other prescription drug.

If you have questions about this information please contact Luanne Richey at (503) 371-8667 or (800) 285-5461.

This information is intended for information purposes only and is not intended to convey legal advice. Readers should not act on information in this update without first seeking legal advice.