An employer may terminate an employee for his or her off-the-job marijuana use, even if the employee is authorized under state law to use cannabis medicinally, the Oregon Supreme Court ruled last week.
In a 5 to 2 decision, the Court determined that an employee who uses marijuana in accordance with state law is nonetheless “engaged in the illegal use of drugs” and may be fired for his or her off-the-job conduct. Because marijuana remains classified as an illicit Schedule I drug under federal law and may not be legally ‘prescribed’ by a physician, the Court opined that employers should not be mandated to accommodate workers who engage in its use.
“[T]he Controlled Substances Act must authorize a licensed health care professional to prescribe or administer the controlled substance,” the majority determined. “As noted, under the Controlled Substances Act, physicians may not prescribe Schedule I controlled substances for medical purposes. … Because employee did not take marijuana under supervision of a licensed health care professional and because the authorization to use marijuana found in ORS 475.306(1) is unenforceable, it follows that employee was currently engaged in the illegal use of drugs and, as the commissioner found, employer discharged employee for that reason.”
Commenting on the Court’s decision, NORML Deputy Director Paul Armentano said: “This ruling isn’t about workplace safety; it’s about the Court upholding discrimination – plain and simple. It is absurd for the majority of the Court to argue that medical marijuana patients are allowed certain protections under state law while simultaneously arguing that these same patients lack the legal right to earn a living.”
Despite the Court’s ruling, the majority stated that the federal Controlled Substances Act does not preempt provisions of the Oregon Medical Marijuana Act that exempt patients’ possession, manufacture, or distribution of medical marijuana from state criminal liability.
Writing for the dissent, Justice Martha L. Walters opined: “I do not understand why, in our system of dual sovereigns, Oregon must fly only in federal formation and not, as Oregon’s motto provides, ‘with her own wings.’ Therefore, I cannot join in a decision by which we, as state court judges, enjoin the policies of our own state and preclude our legislature from making its own independent decisions about what conduct to criminalize.”
The Court’s decision overturned a previous decision from the Bureau of Labor and Industries ordering the employer to pay damages, and a Court of Appeals decision affirming that judgment.
In 2006, the Oregon Supreme Court similarly ruled (Washburn v. Columbia Forest Products, Inc.) that employers may fire workers for failing a company mandated drug test for marijuana, even if their use is authorized by state law.
In 2008, the California Supreme Court issued a similar decision (Ross v. Ragingwire Telecom), finding: “California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.”
Full text of the Oregon Supreme Court decision (Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries) is available online at: http://www.publications.ojd.state.or.us/S056265.htm.