Oregon Supreme Court Finds Employee Has No Protection for Treatment of His Medical Condition Because . . . He Can Treat His Medical Condition?

In an astounding exercise of legal logic, the Oregon Supreme Court held that a medical condition that can be treated is not protected under the Oregon Disabilities Act. (Washburn v. Columbia Forest Products.) What makes this opinion all the more disheartening for anyone concerned about the rights of disabled employees is that it brings Oregon law closer to Federal Law. As a result, in order to have protections under either law, you have to be presently impaired in a major life activity. Employers now argue under federal law, and will now do so under state law, that even though someone has a medical condition, such as diabetes, if that condition is treatable such that the person is symptom free, she can be fired specifically because she is a diabetic. In short, under their version of the law, you lose protections to the extent you treat your medical condition. It is amazing how a bunch of lawyers can turn on its head a law meant to protect disabled employees.

As a side note, this is also a medical marijuana case. However, the court appears to have dodged the fundamental question posed: i.e. is it a reasonable accommodation for an employee to be allowed use of medical marijuana, off-duty, even if it results in a violation of the employer's drug policy? The Court of Appeals had ruled that an employer could not terminate the employee for a failed urinalysis drug test (a result of use of medical marijuana) because allowing off-duty use of the medication was an accommodation for treatment of the disability. Because of the Supreme Court's resolution of the case on the disability issue, i.e. there was no disability, this holding of the Court of Appeals appears to still be the law in Oregon.

Bennett Hartman is a Portland Oregon law firm which specializes in representing employees against their current and former employers. For more information, please see the Bennett Hartman website.