Ruling could make (Oregon) state medical pot program go up in smoke - 4/15/10

[Quietus]

Ruling could make state medical pot program go up in smoke

UPDATE: Labor commissioner says state will no longer be able to protect some employees
BY PETER KORN
The Portland Tribune, Apr 15, 2010


_{Oregonians with medical marijuana cards could face legal problems now that a state supreme court ruling might invalidate the state program.}

An Oregon Supreme Court ruling Thursday morning dealt a major blow to supporters of medical marijuana, giving employers broad powers to dismiss employees who smoke marijuana for personal use, even if those employees are medical marijuana cardholders.

The ruling, “Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries of the state of Oregon,” has state officials scrambling to prepare a response, which some employment attorneys say could dramatically alter the state’s medical marijuana landscape.

“No matter what Oregon says in creating this medical marijuana program, this case is essentially saying that if the federal government wants to come in and bust users of medical marijuana, there’s nothing the state can do about it,” said Portland employment attorney Richard Meneghello.

Since Oregon voters passed a ballot measure instituting medical marijuana twelve years ago, employers and workers have had no clear legal direction on the responsibility of employers to accommodate cardholders.

Thursday’s ruling eliminates that uncertainty.

State Labor Commissioner Brad Avakian said the ruling “seriously undercuts the law that Oregonians put in place, by initiative petition, in 1998.”

“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,” Avakian said in a statement released Thursday afternoon. “BOLI will no longer be able to enforce employment protection under state disability law for medical marijuana users.”

An Oregon Court of Appeals ruling issued Wednesday in the case of “State v. Berrringer” also hit medical marijuana programs. The court ruled that a California medical marijuana card was not valid in Oregon, allowing prosecution of a man who was stopped in Clackamas County while driving marijuana to a friend in Washington.

The National Federation of Independent Business’ Small-business Legal Center praised the Oregon Supreme Court ruling, saying it upheld the rights of employers to maintain drug-free workplaces.

“The Oregon Medical Marijuana Act permits registered patients to use marijuana free of the threat of criminal prosecution, but the act does not stand as a statutory trump card over every other statute and common law duty,” said Karen R. Harned, the legal center’s executive director. “Employers have a duty to their employees, customers and the general public to provide a safe and drug-free workplace. Oregon employers should not be saddled with a competing duty to accommodate patients who use marijuana pursuant to the Oregon Medical Marijuana Act. The Oregon Supreme Court made the right decision to overturn the lower court’s decision and find in favor of an employer’s right to maintain a drug-free workplace.”

The federation filed a “friend of the court” brief supporting the employer in the legal fight.

Invalidate the program
The case involves Anthony Scevers, a drill press operator at Emerald Steel Fabricators in Eugene. Scevers was dismissed from his job after disclosing that he used medical marijuana and was a cardholder. He had been told he was doing satisfactory work.

Scevers filed a complaint with the Oregon Bureau of Labor and Industries, which eventually issued discrimination charges against Emerald Steel. The Oregon Court of Appeals agreed with the agency.

In reversing the Court of Appeals ruling Thursday, the Supreme Court basically said that federal drug laws trump state drug laws. Since medical marijuana is not recognized in federal law, and marijuana is considered an illegal drug by federal standards, employers can dismiss medical marijuana cardholders from jobs.

The ruling appears to exempt medical marijuana growers and caregivers, but makes clear that cardholders using medical marijuana are still breaking federal law, says Paula A. Barran, a Portland employment attorney.

One key section of the Supreme Court ruling calls the Oregon medical marijuana law “not enforceable.” And that phrase has attorneys both inside and outside state government wondering how far the ruling can be applied.

“I believe a fair reading of that paragraph may very well invalidate the entire medical marijuana program,” Barran said.

The Oregon Attorney General’s office said it had no comment on the ruling. But others were more willing to speculate.

Reporter Kevin Harden contributed to this news story.

[Quietus]

This is will nasty consequences for other states facing the same issue, as the poor WallMart worker with brain cancer showed us.

The question that this case poses is how those state and federal laws intersect in the context of an employment discrimination claim; specifically, employer argues that, because marijuana possession is unlawful under federal law, even when used for medical purposes, state law does not require an employer to accommodate an employee's use of marijuana to treat a disabling medical condition.  The Court of Appeals declined to reach that question, reasoning that employer had not preserved it.  Emerald Steel Fabricators, Inc. v. BOLI, 220 Or App 423, 186 P3d 300 (2008).  We allowed employer's petition for review and hold initially that employer preserved the question that it sought to raise in the Court of Appeals.  We also hold that, under Oregon's employment discrimination laws, employer was not required to accommodate employee's use of medical marijuana.  Accordingly, we reverse the Court of Appeals decision.

You can read the decision at the following url.

http://www.publications.ojd.state.or.us/S056265.htm