Oregon Court of Appeals protects medical marijuana

PORTLAND — The Oregon Court of Appeals has ruled that an employer must make a reasonable accommodation for medical marijuana use for a disability.

In an opinion issued Wednesday, the appeals court upheld a ruling by the state Bureau of Labor and Industries.

The agency said that Emerald Steel Fabricators in Eugene violated state laws barring discrimination against the disabled by discharging an employee who used medical marijuana.

A key issue was the fact the employee never used marijuana in the workplace — an issue the Oregon Supreme Court avoided in 2006 when it ruled against a registered medical marijuana user fired from his job at a Columbia Forest Products plant after urine tests detected traces of the drug.

Employers do not have to let patients smoke medical marijuana in the workplace. But the Oregon Medical Marijuana Act approved by voters in 1998 was unclear about whether employers must accommodate workers who smoke medical marijuana off the job.

In the opinion by Judge Timothy Sercombe, the Oregon Court of Appeals went back over the 2006 Oregon Supreme Court ruling to emphasize the Emerald Steel employee never used the marijuana at work — just like the worker in the Columbia Forest case.

The appeals court also noted the Oregon Supreme Court did not address some of the defenses raised in the earlier case, including the argument an employee could be affected by medical marijuana use while on duty or in "safety-sensitive positions."

It also rejected an attempt by Emerald Steel to raise new issues on appeal, including the fact that marijuana remains illegal under federal law despite state law allowing its use for medical purposes.

"Accordingly, we will not consider those issues for the first time on review," Sercombe wrote.

Medical marijuana has been opposed by the construction industry, which wants laws to prohibit medical marijuana users from potentially hazardous jobs such as operating heavy machinery.

Associated General Contractors has lobbied for laws defining safety-sensitive jobs, including driving large trucks, handling explosives, working at construction sites and other jobs listed as hazardous under state work safety laws.

Supporters of restrictions on medical marijuana use, including state Rep. Mike Schaufler, D-Happy Valley, have said they are trying to ensure public safety.

But medical marijuana activist John Sajo says that during legislative hearings last year, nobody was able to identify a single case where a medical marijuana patient had caused a workplace accident or problem.

He also said the vast majority of medical marijuana patients are too ill to work.

Eleven other states — Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Rhode Island, Vermont and Washington state — have medical marijuana laws.