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Court Rules on Marijuana
    #403371 - 04/18/10 04:00 AM (6 years, 6 months ago)

Court Rules on Marijuana

April 16, 2010 at 05:20:21 PT
By Karen McCowan, The Register-Guard

Oregon -- In a Eugene case with national implications, the Oregon Supreme Court ruled Thursday that employers do not have to accommodate a worker’s medical marijuana use — even if it’s off the job.

Business groups across the country praised the ruling, saying it affirms employers’ right to maintain a drug-free workplace. Thirteen other states and the District of Columbia also allow medical use of pot. Employment lawyers say such laws have prompted a flood of questions and concerns about their impact on workplace safety and performance.

But worker rights advocates say Thursday’s 5-2 decision guts protection for disabled employees who use a medical remedy that Oregon voters approved more than a decade ago.

“As Oregonians, we have always believed strongly in our ability to determine the right public policy within our own borders,” said Brad Avakian, the state’s labor commissioner. He heads the Bureau of Labor and Industries, which enforces disability law and other employment protections.

In its split decision, the court said Emerald Steel Fabricators Inc. of Eugene acted lawfully when it fired drill press operator Anthony Scevers in 2003 after he disclosed that he was using pot off the job for a medical problem.

The majority opinion, written by Justice Rives Kistler, reversed earlier decisions in the case by BOLI and the Oregon Court of Appeals.

Kistler wrote that Emerald Steel was not obligated to accommodate Scever’s use of the drug to treat stomach problems even though he had an Oregon medical marijuana card. Oregon’s Medical Marijuana Act does not “authorize” such pot use, but simply exempts it from “state criminal liability,” the opinion held. Because federal law still prohibits all use of marijuana, Kistler wrote, Emerald Steel was within its rights to fire the employee for illegal use of drugs.

In a dissent joined by another judge, Justice Martha Walters of Eugene argued that federal drug law did not trump Oregon’s medical marijuana law because states have a right to enact policies that differ with federal policy so long as they do not pose an obstacle to federal law.

The Oregon Court of Appeals had upheld BOLI’s determination that Emerald Steel violated Oregon disability law by firing Scevers without trying to determine a reasonable accommodation for his disability.

Scevers, a 33-year-old U.S. Army veteran, no longer has a listed local phone number and could not be reached for comment.

According to court documents, however, a doctor referred him for a medical marijuana card to treat severe nausea, stomach cramps and vomiting. A BOLI investigation concluded that Scevers never used pot at work or appeared impaired on the job. The agency in 2005 ordered Emerald Steel to pay Scevers $20,000 in lost wages and benefits, and an additional $25,000 for mental, emotional and physical suffering. The Court of Appeals upheld that order two years later, and Emerald Steel appealed to the state Supreme Court.

Company president Don Mathews on Thursday said he is pleased with the decision.

“I believe they did a good job in figuring out what should be done,” he said. “I believe very strongly in the fact that people have to be able to work in a safe way. A person can get killed here if you don’t know what you’re doing. It’s very important that you have all your faculties. Machinery is very unforgiving.”

Avakian, the BOLI commissioner, noted that even before Thursday’s ruling, employers had the right to remove workers whose performance was impaired by medical marijuana or other legal substances.

“In this case, there was no evidence (Scevers) was impaired, which is why we found in his favor,” Avakian said.

Mathews said Scevers was a “temp agency” employee seeking a permanent position with Emerald Steel when he disclosed his medical marijuana use to a supervisor. He did so after being offered the post and learning he faced a drug screening test.

Mathews founded the fabrication company with several partners in 1975. It now employs about 22 people, he said.

He described the legal battle with BOLI as expensive, but declined to elaborate.

Ruling Resolves Confusion

Lawyer Rich Meneghello, who manages the Portland office of the national employment law firm Fisher & Phillips, said the decision will be welcomed by thousands of employers who felt trapped in a previously murky legal area.

He said he fielded phone calls every week and led dozens of seminars — “always jam-packed” — on the topic of medical marijuana and drug-free workplace policies.

“People are very curious and very confused,” he said. “The good news is, there isn’t any murkiness anymore in terms of an employer’s obligation.”

Safety was not always business owners’ main concern, Meneghello said.

“The questions weren’t just about blue-collar, industrial workers,” he said. “We also got calls from white-collar offices, where employers were worried about someone using marijuana having an accident when you send them out on an errand. And there was a second concern about uniformly enforcing zero-tolerance drug policies.”

His office also fielded calls from employers “wanting to know if it was OK to allow employees to use medical marijuana at work,” Meneghello said. “Not to be stereotypical about it, but we got more of the latter kind of calls from the Eugene area than from Portland.”

He noted that Thursday’s Supreme Court decision doesn’t prohibit employers from accommodating medical marijuana users. “It simply protects employers who choose not to,” he said.

Some employment law specialists see Thursday’s decision as threatening, even invalidating the Oregon Medical Marijuana Act, because of its finding that federal law on controlled substances supersedes the Oregon law’s protection of medical marijuana use.

“Narrow, Narrow Ruling”

But lawyers who championed the state law and now defend its users, such as Eugene attorney Brian Michaels, disagreed.

“It is a very narrow, narrow ruling, within the context of federal and state disability law,” he said.

And state health officials issued a statement Thursday afternoon, saying the high court decision does not appear to affect the Oregon Medical Marijuana program, according to Oregon Department of Justice lawyers.

“The program will continue to register cardholders and issue medical marijuana cards. The confidentiality of medical marijuana users, caregivers and growers is still protected under the Oregon Medical Marijuana Act,” the statement said, adding: “The Oregon Medical Marijuana Program has always been clear with cardholders that the Oregon Medical Marijuana Act does not offer individuals any protection from federal law.”

Portland attorney Philip Lebenbaum, who successfully represented an employee in a similar medical marijuana cased two years ago, expressed disappointment with Thursday’s decision.

He agreed with Justice Walters, who referenced Oregon’s successful defense of its physician-assisted suicide law in her dissent.

“That basically was a decision where the state was allowed to differ from the federal government on the use of prescription medication,” Lebenbaum said. “I think she had the spirit of Oregonians when she wrote that ‘Oregon should fly with its own wings,’ ” a reference to the state motto.

Source: Register-Guard, The (OR)
Author: Karen McCowan, The Register-Guard
Published: April 16, 2010
Copyright: 2010 The Register-Guard
Contact: rgletters@guardnet.com
Website: http://www.registerguard.com/
URL: http://drugsense.org/url/l0CZOqoW

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