MEDICAL MARIJUANA CARD OFFERS NO JOB PROTECTION

Court Rules That Businesses Can Fire Employees Who Test Positive

A business can fire workers who test positive for marijuana use
despite their having a medical marijuana card, the Oregon Supreme
Court ruled Thursday.

In a 5-2 decision, the court majority said that the state law voters
approved in 1998 does not override a federal law that classifies
marijuana as a drug with no medicinal uses.

"Because employee did not take marijuana under supervision of a
licensed health care professional and because the authorization to
use marijuana found (in state law) is unenforceable, it follows that
employee was currently engaged in the illegal use of drugs," said the
majority opinion written by Justice Rives Kistler.

The opinion did not strike down the 1998 law, which shields the
possession, growing and distribution of specified amounts of medical
marijuana from state criminal liability. Lawmakers have revised it a
couple of times.

The Controlled Substances Act does impose federal criminal liability,
but Attorney General Eric Holder announced last year that the U.S.
Justice Department would limit prosecution and not pursue raids on
medical-marijuana clubs in California. The Oregon law, unlike
California's, does not permit the sale of marijuana for medical purposes.

The decision was praised by Associated Oregon Industries, the state's
largest business-lobbying organization, which filed a
friend-of-the-court brief in support of the business involved.

"The decision now means that employers can be assured that they can
consistently enforce their zero-tolerance drug policies," AOI said in
a statement.

But Labor Commissioner Brad Avakian said the decision appears to
undercut the 1998 law.

"The immediate impact of the Supreme Court's decision is to remove
the employment protection that medical marijuana users had under
Oregon's disability law," said Avakian, whose Bureau of Labor and
Industries enforces labor laws. "BOLI will no longer be able to
enforce employment protection under state disability law for medical
marijuana users."

The Department of Human Services, which issues medical marijuana
cards, said the decision affects only employers and employees.

"The program will continue to register cardholders and issue medical
marijuana cards. The confidentiality of medical marijuana users,
caregivers and growers is still protected under the Oregon Medical
Marijuana Act," a department statement said.

"The Oregon Medical Marijuana Program has always been clear with
cardholders that the Oregon Medical Marijuana Act does not offer
individuals any protection from federal law."

The case involves an employee fired in 2003 by Emerald Steel
Fabricators, which argued that because marijuana possession is
illegal under federal law - even when used for medicinal purposes -
state law does not require an employer to accommodate an employee's
use of marijuana to treat a disabling medical condition.

The employee, Anthony Scevers, was a temporary drill-press operator
being considered for a permanent job at the Eugene company on
condition that he pass a drug test. He had informed the company he
smoked marijuana a few times a week for a medical condition.

The dispute was not about on-premises use, which the state law
specifically does not require employers to accommodate.

The high court reversed both the Bureau of Labor and Industries,
which issued a decision that the employer violated the law because it
failed to accommodate the disability, and the Court of Appeals, which
upheld the bureau but did not decide the case on the basis of the
employer's argument.

Justices Martha Walters, who is from Eugene, and Robert Durham
dissented from the decision.

"I do not understand why, in our system of dual sovereigns, Oregon
must fly only in federal formation and not, as Oregon's motto
provides, 'with her own wings,'" Walters wrote, quoting the state
motto. "Therefore, I cannot join in a decision by which we, as state
court judges, enjoin the policies of our own state and preclude our
legislature from making its own independent decisions about what
conduct to criminalize."

Oregon is one of 14 states with medical-marijuana laws. Other states
are considering them.