April 16, 2010 – Workers who use pot to relieve pain or nausea can be fired for drug use even if they have a state-issued medical marijuana card, the Oregon Supreme Court ruled Thursday.

In a decision hailed by business groups, the court said Oregon’s medical marijuana program must give way to federal laws controlling illegal drugs. Specifically, laws that require employers to accommodate disabled workers don’t extend to medical marijuana use.

The 5-2 decision overturned an earlier Oregon Court of Appeals ruling in the case and a decision by the state Bureau of Labor and Industries, which had ordered back wages for a man who was fired by a Eugene steel fabrication firm after he acknowledged using pot.

The trade group Associated Oregon Industries said the decision “could not be better” for Oregon employers.

“The highest court in the state has now said that employers need not accommodate medical marijuana users in the workplace,” the group said in a news release. It said employers should feel free to apply “zero-tolerance” drug policies and refuse to hire applicants who fail drug tests “regardless of medical marijuana registry status.”

Medical marijuana use and the rights of disabled workers “used to be a gray area,” said Portland attorney Rich Meneghello, who specializes in employment law. But he will now advise clients they don’t have to accommodate such workers.

At its broadest application, the court’s ruling puts the Oregon Medical Marijuana Program in doubt, he said. Federal law labels marijuana an illegal drug while Oregon says medical marijuana use is legal, and the court appears to be saying federal law trumps state law, Meneghello said.

The court’s ruling, written by Justice Rives Kistler, acknowledged that conundrum.

“To be sure, the two laws are logically inconsistent; state law authorizes what federal law prohibits,” Kistler wrote.

He said Oregon’s medical marijuana act protects users from criminal prosecution under state law but did not prevent the employee from being fired for “illegal use of drugs.”

Oregon Labor Commissioner Brad Avakian called the court’s reasoning “troubling” because it undercuts a law voters approved in 1998.

“As Oregonians, we have always believed strongly in our ability to determine the right public policy within our own borders,” Avakian said in a news release.

In a dissenting opinion, Justice Martha L. Walters said the ruling “wrongly limits the state’s power to make its own laws” regarding medical marijuana.

“I do not understand why … Oregon must fly only in federal formation and not, as Oregon’s motto provides, ‘with her own wings,’” Walters concluded.

A spokeswoman for the Oregon Medical Marijuana Program said the ruling involves only employers and employees, and doesn’t appear to affect patients, caregivers and growers.

The case involved the 2003 firing of Anthony Scevers, a drill press operator with Emerald Steel Fabricators of Eugene. According to court records, Scevers had suffered since 1992 from anxiety, panic attacks, nausea and vomiting. He was granted a medical marijuana registry card in 2002 after a doctor determined he had a “debilitating medical condition” that was eased by smoking pot.

Scevers was hired in January 2003 on a temporary basis and was being considered for a full-time job. At the time, he was using medical marijuana one to three times a day, but not at work. Knowing he would have to pass a drug test to be hired permanently, Scevers told an Emerald Steel supervisor that he was a medical marijuana user and showed his documentation. A week later, he was fired.
View full sizeThe Cannabis Cafe in Portland’s Woodlawn neighborhood offers a place for medical marijuana users to gather with others and safely smoke.
Scevers filed a claim with the Bureau of Labor and Industries, which ruled that Scevers’ medical condition qualified as a disability under state law and that Emerald Steel should have engaged in an “interactive process” to accommodate his medical marijuana use. It ordered the company to pay Scevers $20,000 in lost wages and benefits and $25,000 for emotional suffering.

The Oregon Court of Appeals upheld the labor bureau’s decision, but the Supreme Court said both were wrong. The money awarded to Scevers remained in bond during the appeals process and was never paid.

Eugene attorney Terence Hammons, who represented Emerald Steel, said the company fired Scevers because it feared he or someone else might get injured.

“Emerald Steel has some real dangerous pieces of equipment out there,” he said. “They didn’t want someone using equipment under the influence of marijuana. The underlying concern was safety.”

Hammons said he doesn’t expect a “tremendous round of firings” because of the court decision, but it gives employers grounds to take action.

Scevers could not be reached for comment Thursday.   By Eric Mortenson.  Source.