RULING SAYS WORK, WEED MAKE FOR AN UNHOLY PAIR

Oregon Supreme Court Ruled That Firing Employees in OMMP Doesn't
Count As Discrimination

The wait is over for a definitive answer regarding whether state
employers are required to accommodate employees' medical marijuana
use in the workplace.

Last week, the Oregon Supreme Court ruled that employers are not
obligated to accommodate medical marijuana use in the workplace,
rendering employees currently using medical marijuana unprotected by
state discrimination laws.

The case, Emerald Steel Fabricators v. Bureau of Labor and Industry,
involved a local company firing an employee who used medical marijuana.

According to the court docket on the case, the employee, who suffered
from nausea, stomach cramps and vomiting, reported using marijuana
medicinally one to three times a day throughout a 90-day period
working as a part-time drill operator. He was in the midst of a trial
period that preceded being hired on as a full-time employee.

The employee was not suspected of marijuana use by his supervisor and
said he never smoked on the job. A week after disclosing his medical
condition, in the interest of being hired full-time, he was fired in
accordance with the company's drug policy, despite being an Oregon
Medical Marijuana Program cardholder.

The decision to favor employers over OMMP cardholders comes as an
assertion of federal drug-free workplace programs' legitimacy over
the protection provided by the state medical marijuana program.

"Because neither the Oregon Medical Marijuana Act nor any subsection
thereof gives permission to violate the Controlled Substances Act or
affects its enforcement, the Oregon act does not pose an obstacle to
the federal act necessitating a finding of implied preemption," a
summary of the ruling states.

The defendant said of the accommodation of medical marijuana use: "It
is not legal under state law because the Supreme Court has ruled that
legalization of marijuana is preempted by federal law. This obviously
invalidates Oregon's Medical Marijuana Act."

The decision is consistent with court rulings in other states with
medical marijuana laws, including California, Montana and Washington,
according to the National Organization for the Reform of Marijuana Laws.

Brad Avakian, chief of the Bureau of Labor Industries (BOLI), which
enforces disability law and other employment protections, rebutted
the logic behind the court's decision in a press release the day of the ruling.

"As Oregonians, we have always believed strongly in our ability to
determine the right public policy within our own borders," he said.
"That makes today's decision all the more troubling, because it so
seriously undercuts the law that Oregonians put in place, by
initiative petition, in 1998."

John Sajo, director of Voter Power, the group that got a 1998
initiative onto the ballot that allowed the use of medical marijuana
in Oregon, downplayed the significance of the ruling.

"Just because the Supreme Court gave (employers) the right to fire
doesn't mean employers are going to fire productive workers," Sajo
said. "We do think this a very unfortunate decision - it ignores
state rights, ignores the voters and allows discrimination against
patients who find marijuana to be the most effective medicine for
treating their ailment."

Bob Estabrook of BOLI said the ruling had definitively reduced the
bureau's role in protecting OMMP cardholders from discrimination on
account of their disabilities.

"Our role is certainly curtailed, and it may really be pretty much
eliminated by this ruling," Estabrook said. "It sounds like the
issue is settled as far as employment discrimination goes. Apparently
we're not going to be in the business of protecting those workers
anymore because the Supreme Court says we can't."

Estabrook was not certain what the role of BOLI would be in the new
medical marijuana landscape, but he said the potential for an appeal remains.