Worker Fired for MMJ Use has Lawsuit Reinstated

Worker Fired for MMJ Use has Lawsuit Reinstated
Posted by CN Staff on January 13, 2005 at 07:22:39 PT
By The Associated Press 
Source: Associated Press 
Salem, Ore. - The Oregon Court of Appeals reinstated a lawsuit filed by a man who alleged that his employer failed to accommodate his use of medical marijuana. Robert Washburn's employer, Portland-based Columbia Forest Products, fired him from its Klamath Falls mill after urine tests detected marijuana residue in his system.
Washburn suffers from neck pain and muscle spasms that disrupt his sleep. He obtained a state-issued medical marijuana registration card 1999. A Multnomah County Circuit Court judge had tossed out Washburn's lawsuit, ruling that the state Medical Marijuana Act doesn't require a company to make accommodations for workers with marijuana in their system. But the Court of Appeals ruled Wednesday that a positive drug test based on a urine sample does not prove that a worker used or possessed marijuana at work. It also found that the federal Drug-Free Workplace Act does not prohibit workers in Oregon from using marijuana for medical purposes. But the court also found that Washburn's use of medical marijuana does not automatically entitle him to accommodations. Instead, the court said, an employer could argue that certain accommodations might be unreasonable or create an "undue hardship." The appeals court ordered the Multnomah County Circuit Court to decide whether Washburn's accommodation request was reasonable. Washburn asked Columbia Forest Products to use a blood test to determine whether he violated company policy forbidding drug use at work. A blood test is considered a more accurate measure of whether marijuana exists in the bloodstream, employment attorneys say. The ruling is the first attempt to clear up a confusing area of law for scores of employers. The Oregon Medical Marijuana Act says employers don't have to accommodate the "medical use of medical marijuana in any workplace." But Oregon Bureau of Labor & Industries officials have said that under the state disabilities act, employers might have to make reasonable accommodations for medical-marijuana cardholders with qualified disabilities. Philip Lebenbaum, an attorney who represented Washburn, called the decision a victory for workers who use marijuana for medical reasons. But he said the ruling does not allow workers to show up unfit for work. Complete Title: Worker Fired for Medical Marijuana Use has Lawsuit ReinstatedSource: Associated Press (Wire)Published: January 13, 2005 Copyright: 2005 The Associated Press CannabisNews Medical Marijuana Archives
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Comment #7 posted by FoM on January 25, 2005 at 10:07:05 PT
Related Article
United States: Oregon Court of Appeals Weighs in on Medical Marijuana and the Definition of Disability Michael Porter January 25, 2005  
On January 12, 2005, the Oregon Court of Appeals considered whether an employer must accommodate an employee's request to use medical marijuana and whether mitigating measures should be considered to determine if an employee is "disabled." Washburn v. Columbia Forest Products, Inc., No. A11664 (Or Ct App, January 12, 2005).Facts of the caseColumbia Forest Products ("CFP") employed Robert Washburn as a millwright. Washburn's work included maintenance of dangerous heavy equipment, and CFP classified his job as a "safety-sensitive" position. Washburn had been approved for participation in Oregon's medical marijuana program to alleviate muscle spasms that limited his ability to sleep. Washburn smoked marijuana before going to sleep each night. CFP's drug policy prohibited employees from reporting to work with the presence of a controlled substance or illegal drug in their system. CFP tested Washburn pursuant to that policy, and although the test did not reveal whether he was under the influence of marijuana at the time, it did reveal that Washburn had recently used marijuana. Washburn asked CFP to accommodate him by allowing him to take a test that would indicate whether he was presently impaired by marijuana. CFP maintained its position that Washburn could not report to work with marijuana in his system, and CFP ultimately terminated his employment.The court's decisionThe court focused on ORS 475.340(2), which states that the Oregon Medical Marijuana Act (the "OMMA") does not require "[a]n employer to accommodate the medical use of marijuana in any workplace." The trial court had ruled that an employee with marijuana in his system was engaged in the "use" of marijuana, and that CFP thus was not required to consider a reasonable accommodation for Washburn under Oregon's disability discrimination laws. The court of appeals reversed the trial court's ruling, holding that the term "use" in ORS 475.340(2) means to produce, possess, deliver, or administer marijuana. The appeals court ruled that Washburn did not "possess" marijuana in the workplace because the term "possess" does not mean having a controlled substance in one's bloodstream. The court also ruled that the Federal Drug-Free Workplace Act does not prohibit a medical marijuana accommodation because it applies only to "unlawful" marijuana use, whereas Washburn's use of the drug was lawful under the OMMA.The court of appeals also addressed an important broader issue: whether mitigating measures should be considered when determining if a person is "disabled" under Oregon's disability discrimination laws. A person is disabled if he or she has an impairment that "substantially limits one or more major life activities." ORS 659A.100(1)(a). Federal courts applying the Americans with Disabilities Act consider whether mitigating measures, such as medication or eyeglasses, render a person's impairment less substantial and thereby render the person not disabled. The court of appeals parted ways with the federal law and ruled that Oregon's statute requires an analysis of whether an impairment is substantially limiting without consideration of mitigating measures. What does this mean for employers? The court of appeals' ruling means that if an employee who is legally using medical marijuana requests an accommodation, an employer will have to perform the reasonable-accommodation analysis and determine (1) whether the employee is disabled and therefore entitled to a reasonable accommodation and, if so, (2) whether a reasonable accommodation exists. The court specifically noted that an employer might not always need to accommodate medical marijuana use. For example, if allowing the medical use of marijuana would create an undue hardship or a direct threat, then an accommodation would not be required. Employers must closely analyze an employee's request to use medical marijuana. The court of appeals' decision regarding a determination whether an employee is disabled significantly affects the way an employer can make such determinations. Employees with impairments that can be controlled, such as diabetes, may now claim that they are disabled and may invoke Oregon's disability discrimination statutes both for protection from discrimination and to request reasonable accommodations. Each employee's impairment must be evaluated on a case-by-case basis to determine whether it substantially limits a major life activity. Washington employers should remember that Washington law defines "disability" differently than federal law. In Washington, an employee generally need only show a medical record of an abnormality to be disabled. Washington law has no provisions allowing consideration of mitigating measures.ConclusionIf CFP appeals the ruling, the Oregon Supreme Court may again address these issues. Until then, Oregon employers must be sure to evaluate whether an employee is disabled for purposes of state law and analyze whether an impairment substantially limits a major life activity without considering any mitigating measures. Similarly, if an employee requests an accommodation related to medical marijuana, an employer must analyze the request like any other request for a reasonable accommodation.The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. 
Copyright: Mondaq® 1994-2005
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Comment #6 posted by FoM on January 13, 2005 at 14:38:03 PT
I wanted to say this too. When I mentioned how much DVDs cost that was to show you how inexpensive they are. I will donate any I make for you if you decide to go with it. I haven't used any at all so I do have 50. I have a dvd recorder and a dvd player. Maybe I could figure out easier how to copy one to the other and not even need to use my computer if I get a copy from you. Just let me know.
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Comment #5 posted by FoM on January 13, 2005 at 12:58:23 PT
If someone could take the video and burn it to a DVD that's a beginning. When my VCR started eating tapes I gave up. We had a video camera and taped so much for years and now I can't even watch them. I bought a pack of 50 DVD-Rs for Christmas. I think the price would break down to about 50 cents a piece and they can record as long as a VHS tape can. Since burning DVDs is new to me I could help burn a few for you after you get one done I think. I learned how to copy and make my own CDs so I should be able to learn how to do a DVD with a little studying. I'd be more then glad to help if I can.
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Comment #4 posted by runruff on January 13, 2005 at 12:43:01 PT:
I think that if you have the proper software you can download and burn a dvd off the internet. I think it is time to reformat my video to dvd. I have had such a good response from people on this web site and elsewhere. Thank you all for your graditude and support. Ten years ago I was challanged by a very mean spirited and cockey LEO who said "If you don't like the marijuana laws change them. I've been trying heart and soul ever since.
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Comment #3 posted by FoM on January 13, 2005 at 10:46:29 PT
I would love to have your video. I'll e-mail you today. I can't see it though unless it is on a DVD. I was trying to figure out if I could download it off line and make a DVD. Do you know if that is possible? Thanks!
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Comment #2 posted by runruff on January 13, 2005 at 10:42:48 PT:
forest products
If you take a look at my video "Let My People Grow" I show wood replacement products ie. boards, paneling, anything that can be made from a tree can be made better from hemp.
There is a link on this web page to CRRH go to documentries or write me runruff and I'll send you a copy free 
 Just pay postage of $2.00.
 You can pass it around. it is very informative. Even shows the inside workings a re-legalization movement if you should feel so inclined to start another one.
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Comment #1 posted by sam adams on January 13, 2005 at 07:46:23 PT
great news
"But the Court of Appeals ruled Wednesday that a positive drug test based on a urine sample does not prove that a worker used or possessed marijuana at work. It also found that the federal Drug-Free Workplace Act does not prohibit workers in Oregon from using marijuana for medical purposes."Seems like 2 great precedents were set! I guess they only apply in OR.Isn't it interesting that a "forest products" company was the 1st to fire someone for this and get sued. No surprise that they would be the flag-bearers of the anti-cannabis jihad - industrial hemp farming for paper could wipe them out. Or at least wipe out the pulp segment of their business.I was shocked when I first found out that most logging in the Northeast is done for pulp - i.e., the wood is ground up & processed into paper. Fields of hemp can produce 5 times as much paper per year as the same forest area, with no pesticides or fertilizer. It's clear that the general population would favor hemp farming over clearcutting, if they ever knew about what goes on. Apathy, of course, prevents that from happening.
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