MMJ User Wins Appeal in Ore. Employment Dispute

[Lilli]

MMJ User Wins Appeal in Ore. Employment Dispute
Posted by CN Staff on February 02, 2005 at 09:20:46 PT
By Patricia Grzywacz Walsh, Esq.
Source: FindLaw

A medical marijuana user who lost his safety-sensitive job because he tested positive for pot has won reversal of a state court trial ruling that favored his employer, according to a first-impression ruling by the Oregon Court of Appeals.
The trial court's summary judgment for the employer was inappropriate because disputes of material fact existed over the application of Oregon anti-discrimination law, according to the appeals court.

According to court documents, Columbia Forest Products Inc. employed Robert Washburn as a millwright at an Oregon facility. Washburn was required, among other things, to maintain dangerous equipment and the company classified his position as "safety-sensitive." Washburn took prescription medication to treat a sleeping disorder caused by muscle spasms.

In August 1999, Washburn's doctor prescribed medical marijuana for his sleeping problem and enrolled in Oregon's medical marijuana program. Once he received a registry identification card, he began smoking marijuana at night to help him sleep.

Columbia has an anti-drug workplace policy, prohibiting employees from reporting to work with a controlled substance in their body. An October 2000 urine sample revealed marijuana in Washburn's system and he was placed on leave of absence pending a clean drug test, the court documents said.

Washburn continued to smoke marijuana throughout his leave of absence, rendering him unable to pass the drug test. After the second positive test, Washburn was terminated pursuant to Columbia's anti-drug policy, according to the documents.

Washburn sued Columbia in an Oregon trial court, claiming that the company failed to accommodate his disability under Oregon law.

Columbia moved for summary judgment, arguing that Washburn was not a qualified individual with a disability under the state's anti-discrimination statute and that the Oregon Medical Marijuana Act does not require employers to accommodate medical marijuana users. The trial court granted the motion and Washburn appealed.

The state appeals court reversed. The court had to decide if available treatments, such as Washburn's use of marijuana, rendered his disability less than substantial. Under Sutton v. United Airlines, 527 U.S. 471 (1999), the U.S. Supreme Court ruled in an Americans with Disabilities Act case that "if a person uses mitigating measures that render that person less than substantially limited in a major life activity, the person is not a 'disabled person' under 42 U.S.C. § 12102(2)(A)."

This standard was utilized by the lower court when it concluded Washburn was not a qualified individual with a disability, based on the general principle that the state anti-discrimination law was to be interpreted the same way as the ADA.

The appeals court acknowledged that Oregon's disability law mirrored the federal ADA, under which Sutton was decided, but found that only certain provisions of Oregon's disability law were to be construed consistently with the ADA. The definition of a "disabled" person was not one of those provisions, according to the appeals court.

Once the appeals court reached that conclusion, it analyzed the state statute's definition of "disability" with respect to mitigating measures. The issue, as phrased by the appeals court, was whether the definition took mitigating measures into account.

Because the legislative intent behind the statute did not address mitigating measures, the appeals court concluded that under the statute's definition of disability, mitigating measures are not to be considered when determining if a major life activity is substantially limited.

Because the trial court erroneously considered mitigating measures when determining that Washburn was not a qualified individual with a disability, the appeals court concluded a genuine issue of fact existed as to whether Washburn met the state anti-discrimination statute's definition of disability. This aspect of the trial court decision was reversed.

Next, the appeals court examined the second rationale the trial court used to grant summary judgment in Columbia's favor, that pursuant to Section 475.340(2) of the Oregon Medical Marijuana Act, "[n]othing in [the OMMA] shall be construed to require ... [a]n employer to accommodate the medical use of marijuana in any workplace."

Based on that provision, the trial court agreed with Columbia that "use" under the statute included testing positive for marijuana.

Washburn contended that he never possessed marijuana at work and therefore never "used" marijuana at work. Under Section 475.302(7) of the OMMA, the "medical use of marijuana" includes "the production, possession, delivery, or administration of marijuana, or paraphernalia used to administer marijuana."

The appeals court agreed with Washburn's assertion, finding use outside of work did not amount to possession, based on State v. Daline, 30 P.3d 426 (Or. Ct. App. 2001), which held that once a person consumes a controlled substance, the person no longer possess the substance.

As a result, Washburn was not in "possession" of marijuana in the workplace when he tested positive for the substance, and the trial court erred in finding Columbia was not required to reasonably accommodate him because he possessed marijuana while at work.

The appeals court noted that whether a reasonable accommodation was required for Washburn was still in dispute, as there may be reasons why Columbia would not have to accommodate him, such as safety considerations. This aspect of the case was also remanded for trial.

Washburn v. Columbia Forest Products Inc., Nos. 0012-12516 and A116664, 2005 WL 56898 (Or. Ct. App. Jan. 12, 2005).

Disability Litigation Reporter
Volume 02, Issue 04

Note: Washburn v. Columbia Forest Products Inc.

Complete Title: Medical Marijuana User Wins Appeal in Ore. Employment Dispute

Source: FindLaw (US Web)
Author: Patricia Grzywacz Walsh, Esq., Disability Litigation Reporter
Published: February 1, 2005
Copyright: 2005 FindLaw
Website: http://www.findlaw.com/
Contact: http://www.findlaw.com/info/write/others_faq.html

Related Articles & Web Site:

Medicinal Cannabis Research Links
http://freedomtoexhale.com/research.htm

Court Refines Marijuana Law
http://cannabisnews.com/news/thread20124.shtml

Worker Fired for MMJ Use has Lawsuit Reinstated
http://cannabisnews.com/news/thread20123.shtml
_________________

I pass to you the torch that Christ once passed to me.
Others are still in the dark and need
the light to see.
"I AM"
"Gathering the fragments so that
none are lost"
His Shepherdess
http://missouri.thcministry.org/

[Stokes]

That's excellent.

GO WASHBURN !!! ... GO !!!
_________________
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Where love is, there God is also.

-Mahatma Gandhi

[Lilli]

woooooooooooohhhhhaaaaaaaaaaaaaaa hallelujah
_________________

I pass to you the torch that Christ once passed to me.
Others are still in the dark and need
the light to see.
"I AM"
"Gathering the fragments so that
none are lost"
His Shepherdess
http://missouri.thcministry.org/

[Mystic Power]

Good!

Bliss,
Ben
_________________
"We are the Ones we have been waiting for."
~Hopi Elder ~

"In Lak'ech"
~ Ancient Mayan: "I am another YOU." ~

[Mystic Power]

Good!

Bliss,
Ben
_________________
"We are the Ones we have been waiting for."
~Hopi Elder ~

"In Lak'ech"
~ Ancient Mayan: "I am another YOU." ~

[Torkel]

It's good that the courts are looking at the entire mmj picture with more reason.

Peace,

Torkel
_________________
Miller vs U.S. (230 F 2nd 486,489): "The claim and exercise of a Constitutional right cannot be converted into a crime."

Miranda vs Arizona (384 U.S. 436, 125): "Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them."

HAGANS vs LAVINE (415 US 533 N-3,note 5): "Once JURISDICTION is challenged it must be proven by the Plaintiff."

[Torkel]

It's good that the courts are looking at the entire mmj picture with more reason.

Peace,

Torkel
_________________
Miller vs U.S. (230 F 2nd 486,489): "The claim and exercise of a Constitutional right cannot be converted into a crime."

Miranda vs Arizona (384 U.S. 436, 125): "Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them."

HAGANS vs LAVINE (415 US 533 N-3,note 5): "Once JURISDICTION is challenged it must be proven by the Plaintiff."

[ReverendCaveGrower]

One small step for man, has again become a giant leap for mankind. Im shure some lawyer dickwad for that company is looking it over as we speak for the " i " missing the dot to avoid paying him back wages. Thank God there is ocasional justice handed down in our law system.
_________________
Reverend Cave Grower

[Slide]

Our hopes for cannabis justice lie in the west. I hope and pray that this continues to spread east.

At some point in time the Feds have to recognize that we live in a "democatic country" and the people have spoken.

The power should lie with the people not a bunch of hypocritic power hungry gratuity accepting politicians.



I feel better now.

[Mystic Power]

Sometimes ya just gotta...or you'll pop like a champaign cork!

I look to the west, too, having lived there much of my life. There's a defiance there toward the Feds, and always has been.

Bliss,
Ben
_________________
"We are the Ones we have been waiting for."
~Hopi Elder ~

"In Lak'ech"
~ Ancient Mayan: "I am another YOU." ~

[Mystic Power]

Sometimes ya just gotta...or you'll pop like a champaign cork!

I look to the west, too, having lived there much of my life. There's a defiance there toward the Feds, and always has been.

Bliss,
Ben
_________________
"We are the Ones we have been waiting for."
~Hopi Elder ~

"In Lak'ech"
~ Ancient Mayan: "I am another YOU." ~