In 1998, Oregon became one of the first states to legalize the use of marijuana for medicinal purposes (eighteen states, as well as the District of Columbia, now have similar laws). While Oregon does not have any legal marijuana dispensaries, an individual who suffers from certain diseases or disabilities can grow, possess, and use marijuana with a doctor’s recommendation.
Until recently, the conditions under which Oregonians could legally use marijuana included cancer, epilepsy, chronic pain, glaucoma, multiple sclerosis, HIV and AIDS, or disorders in which they suffer from seizures, muscle spasms, or nausea. However, the Oregon legislature recently added to this list; the East Bay Express reports that, on June 6, Governor Fitzhaber signed Senate Bill 281, which extends the list of qualifying “debilitating medical conditions” to include post-traumatic stress disorder. Given the fact there is now a new group of Oregonians who will be legally allowed to use marijuana, this seems like a good time to review some of the employment law implications of medical marijuana laws.
Federal vs. Oregon State Drug Laws
Under the federal Controlled Substances Act, marijuana is classified as a Schedule I drug – which, in part, means that it has no currently accepted medical use – and is considered illegal for all purposes. However, the Department of Justice has decided not to prosecute individuals who use the drug in compliance with a valid state law. Nevertheless, the conflicts between federal and state drug laws mean that medical marijuana users are not necessarily protected against being fired for their drug use.
Employers May Not Allow for Marijuana Use
Many employers have zero-tolerance policies regarding drug use, and enforce those policies by administering drug tests and dismissing employees who are found to be using drugs. As a general matter, they are usually allowed to do this, because of their responsibility to provide a safe work environment and their right to dismiss at-will employees. Furthermore, when the employment involves issues of public safety – airplane pilots, surgeons, or bus drivers for example – it seems even more reasonable for an employer to insist on having drug-free employees. However, there are many occupations in which an employee could use marijuana for a medical condition and still perform their tasks without any impairment or safety issue. The question is whether an employee who uses marijuana in accordance with Oregon’s laws can be protected from being fired, because he or she is not doing anything wrong under state law.
Oregon’s Medical Marijuana Laws Protect Individuals, But Not Their Employment
In general, employers who have at-will employees can fire them at any time for any non-discriminatory reason. The main argument an employee who was fired for medical marijuana use could make is that the employer was discriminating on the basis of the employee’s disability. In most cases, if an employee has a valid disability, and needs some accommodation to keep working while dealing with their disability, his or her employer is required to make such an accommodation, as long as it is reasonable.
However, the fact that marijuana is illegal under federal law means that employers do not have to “accommodate” marijuana use under the federal Americans with Disabilities Act (ADA). Even when states have made marijuana use legal for medical purposes, an employer is not required to accommodate an employee by allowing him or her to use marijuana. The Oregon Supreme Court affirmed this view of the legal landscape in a 2010 case, Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries.
The Court found that, because federal criminal law preempts the state’s medical marijuana laws, an employee who was fired for legally using medical marijuana could not claim that his employer discriminated against him on account of his disability. While the state medical marijuana law protected the employee from arrest and criminal prosecution, it did not protect him from being rightfully dismissed.
While many people across the state of Oregon – now including those suffering from post-traumatic stress disorder – are legally permitted to use marijuana, they should be aware that the laws do not necessarily protect them from being fired for such use. If you have any questions about how to understand employment rights laws regarding disabilities, or if you believe that your employer has unfairly discriminated against you on the basis of your disability, please contact one of our experienced attorneys to help you.
