Oregon top court: Employee medical pot use not protected

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NFIB Small Business Legal Center fought for employers’ right to maintain a drug-free workplace
Oregon NFIB

Washington, D.C., April 15, 2010 — The National Federation of Independent Business Small Business Legal Center, the nation’s leading advocate for small business in our nation’s courts, today praised the Oregon Supreme Court’s decision to uphold the right of employers to maintain a drug-free workplace.  The case before the court was Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries of the State of Oregon. The court was asked to determine whether or not an employer should be held liable for an unlawful employment practice when the employer chose not to hire a temporary worker as a full-time employee after the worker disclosed that he would not be able to pass a drug test because he uses medical marijuana to treat his anxiety, nausea and vomiting pursuant to the Oregon Medical Marijuana Act.  Lower courts held in favor of the worker and found the employer liable for discharging the temporary worker because of a disability and failing to reasonably accommodate a disability.

The Legal Center filed an amicus brief urging the Oregon Supreme Court to overrule the lower court’s decision, which the court has done. NFIB argued that employers have a right to maintain a drug-free workplace and should not be forced to make a reasonable accommodation for workers who use marijuana pursuant to the Oregon Medical Marijuana Act.

Moreover, Oregon recipients of federal aid must provide a drug-free workplace for employees. Under federal law, employers must notify each employee of the prohibition against using controlled substances, including marijuana. The penalty for violating the law is the suspension or termination of a particular grant and ultimately, debarment for up to five years from future grants.

“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 Harned. “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 NFIB Small Business Legal Center  is a 501(c)(3) organization created to protect the rights of America’s small business owners by providing advisory material on legal issues and by ensuring that the voice of small business is heard in the nation’s courts. The National Federation of Independent Business is the nation’s leading small business association, with offices in Washington, D.C. and all 50 state capitals.