Oregon Court of Appeals Affirms BOLI Mandate of Medical Marijuana Accomodation

In the case of Emerald Steel Fabricators v. BOLI, the Oregon Court of Appeals affirmed the Oregon Bureau of Labor and Industries' requirement that employers accommodate medical marijuana use. Employee was a participant in the Oregon medical marijuana program who was hired as a temporary drill press operator. Employee did not tell his employer that he was a medical marijuana program participant upon being offered the temporary position because he was afraid that Employer would not hire him if they were aware of his marijuana use. Employer’s policy was to have employees work on a temporary basis for three months and then evaluate the employee as to whether they should be offered a permanent position. Employee never used the prescription marijuana while working and Employer never suspected that Employee was using drugs. Employee informed his supervisor that he was participating in the medical marijuana program when he planned to move his residence and needed to know if he was going to be given a permanent position with Employer. Employee’s supervisor spoke with the owner about hiring Employee and ultimately decided that they did not need to hire Employee on a permanent basis.

decision was subsequently reversed by the Oregon Supreme Court, the Employer attempted to Employee filed a complaint with the Bureau of Labor and Industries (BOLI) claiming that the Employer had engaged in unlawful employment practices. BOLI charged the employer with a violation of Oregon disability laws. The Employer asserted several affirmative defenses to the charges. Subsequently, the Oregon Court of Appeals decided a similar case. In Washburn v. Columbia Forest Products, the Court of Appeals held that a plaintiff (a medical marijuana user) was disabled despite the existence of alternative mitigating measures (to medical marijuana use) and that accommodation was necessary. Upon the release of the Washburn decision, Employer’s counsel did not produce any evidence in support of the affirmative defenses. However, after the Washburn decision, Employer reraised in its appeal the affirmative defenses. On appeal, the court rejected these defenses.

There are a few notable aspects to this case. First, it appears that BOLI is giving full effect to the Court of Appeals' Washburn decision as to accommodation of medical marijuana. That case was reversed on other grounds, and therefore the court of appeals decision stands on the un-reviewed aspects of the decision. Thus, employers must accommodate a disabled individuals medical marijuana use. While not permitting on the job use, the applicability of zero-tolerance policies to registered users is clearly in doubt. Second, the effective dismissal of this appeal on preservation issues underlines the importance of careful preservation of affirmative defenses in the administrative context.