cannabisnews.com: MMJ User Wins Appeal in Ore. Employment Dispute MMJ User Wins Appeal in Ore. Employment Dispute Posted by CN Staff on February 02, 2005 at 09:20:46 PT By Patricia Grzywacz Walsh, Esq. Source: FindLaw A medical marijuana user who lost his safety-sensitive job because he tested positive for pot has won reversal of a state court trial ruling that favored his employer, according to a first-impression ruling by the Oregon Court of Appeals.The trial court's summary judgment for the employer was inappropriate because disputes of material fact existed over the application of Oregon anti-discrimination law, according to the appeals court. According to court documents, Columbia Forest Products Inc. employed Robert Washburn as a millwright at an Oregon facility. Washburn was required, among other things, to maintain dangerous equipment and the company classified his position as "safety-sensitive." Washburn took prescription medication to treat a sleeping disorder caused by muscle spasms.In August 1999, Washburn's doctor prescribed medical marijuana for his sleeping problem and enrolled in Oregon's medical marijuana program. Once he received a registry identification card, he began smoking marijuana at night to help him sleep.Columbia has an anti-drug workplace policy, prohibiting employees from reporting to work with a controlled substance in their body. An October 2000 urine sample revealed marijuana in Washburn's system and he was placed on leave of absence pending a clean drug test, the court documents said.Washburn continued to smoke marijuana throughout his leave of absence, rendering him unable to pass the drug test. After the second positive test, Washburn was terminated pursuant to Columbia's anti-drug policy, according to the documents.Washburn sued Columbia in an Oregon trial court, claiming that the company failed to accommodate his disability under Oregon law.Columbia moved for summary judgment, arguing that Washburn was not a qualified individual with a disability under the state's anti-discrimination statute and that the Oregon Medical Marijuana Act does not require employers to accommodate medical marijuana users. The trial court granted the motion and Washburn appealed.The state appeals court reversed. The court had to decide if available treatments, such as Washburn's use of marijuana, rendered his disability less than substantial. Under Sutton v. United Airlines, 527 U.S. 471 (1999), the U.S. Supreme Court ruled in an Americans with Disabilities Act case that "if a person uses mitigating measures that render that person less than substantially limited in a major life activity, the person is not a 'disabled person' under 42 U.S.C. § 12102(2)(A)."This standard was utilized by the lower court when it concluded Washburn was not a qualified individual with a disability, based on the general principle that the state anti-discrimination law was to be interpreted the same way as the ADA.The appeals court acknowledged that Oregon's disability law mirrored the federal ADA, under which Sutton was decided, but found that only certain provisions of Oregon's disability law were to be construed consistently with the ADA. The definition of a "disabled" person was not one of those provisions, according to the appeals court.Once the appeals court reached that conclusion, it analyzed the state statute's definition of "disability" with respect to mitigating measures. The issue, as phrased by the appeals court, was whether the definition took mitigating measures into account.Because the legislative intent behind the statute did not address mitigating measures, the appeals court concluded that under the statute's definition of disability, mitigating measures are not to be considered when determining if a major life activity is substantially limited.Because the trial court erroneously considered mitigating measures when determining that Washburn was not a qualified individual with a disability, the appeals court concluded a genuine issue of fact existed as to whether Washburn met the state anti-discrimination statute's definition of disability. This aspect of the trial court decision was reversed.Next, the appeals court examined the second rationale the trial court used to grant summary judgment in Columbia's favor, that pursuant to Section 475.340(2) of the Oregon Medical Marijuana Act, "[n]othing in [the OMMA] shall be construed to require ... [a]n employer to accommodate the medical use of marijuana in any workplace."Based on that provision, the trial court agreed with Columbia that "use" under the statute included testing positive for marijuana.Washburn contended that he never possessed marijuana at work and therefore never "used" marijuana at work. Under Section 475.302(7) of the OMMA, the "medical use of marijuana" includes "the production, possession, delivery, or administration of marijuana, or paraphernalia used to administer marijuana."The appeals court agreed with Washburn's assertion, finding use outside of work did not amount to possession, based on State v. Daline, 30 P.3d 426 (Or. Ct. App. 2001), which held that once a person consumes a controlled substance, the person no longer possess the substance.As a result, Washburn was not in "possession" of marijuana in the workplace when he tested positive for the substance, and the trial court erred in finding Columbia was not required to reasonably accommodate him because he possessed marijuana while at work.The appeals court noted that whether a reasonable accommodation was required for Washburn was still in dispute, as there may be reasons why Columbia would not have to accommodate him, such as safety considerations. This aspect of the case was also remanded for trial.Washburn v. Columbia Forest Products Inc., Nos. 0012-12516 and A116664, 2005 WL 56898 (Or. Ct. App. Jan. 12, 2005).Disability Litigation ReporterVolume 02, Issue 04Note: Washburn v. Columbia Forest Products Inc.Complete Title: Medical Marijuana User Wins Appeal in Ore. Employment DisputeSource: FindLaw (US Web)Author: Patricia Grzywacz Walsh, Esq., Disability Litigation ReporterPublished: February 1, 2005Copyright: 2005 FindLawWebsite: http://www.findlaw.com/Contact: http://www.findlaw.com/info/write/others_faq.htmlRelated Articles & Web Site:Medicinal Cannabis Research Linkshttp://freedomtoexhale.com/research.htm Court Refines Marijuana Lawhttp://cannabisnews.com/news/thread20124.shtml Worker Fired for MMJ Use has Lawsuit Reinstatedhttp://cannabisnews.com/news/thread20123.shtml Home Comment Email Register Recent Comments Help Comment #8 posted by FoM on February 02, 2005 at 16:58:43 PT Jose Thank you. I have it posted now. That's great news! [ Post Comment ] Comment #7 posted by Jose melendez on February 02, 2005 at 16:30:54 PT cannabis seed cake, anyone? from: http://tinyurl.com/3vcngCourt Orders Drug Enforcement Administration to Pay Hemp Industry Plaintiff's Legal Bills; Dr. Bronner's Magic Soaps to Receive $21,265 Reimbursement Contact: Adam Eidinger, 202-744-2671SAN FRANCISCO, Feb. 2 /U.S. Newswire/ -- The main fiscal sponsor of the Hemp Industries Association (HIA) landmark court victory against the Drug Enforcement Administration (DEA) protecting sales of hemp foods in the United States learned this week they won another legal battle. Ruling under the Equal Access to Justice Act (EAJA), the Ninth Circuit Court of Appeals has ordered the DEA to pay $21,265 to Dr. Bronner's Magic Soaps(r) to compensate them for a portion of their legal fees in HIA vs. DEA."The EAJA allows an award of attorneys fees in this situation only where the court finds the Government's position was not 'substantially justified,' " said Joe Sandler, HIA's counsel in the case. "By making this award, the Court has basically decided that DEA's attempt to outlaw hemp foods never had any real legal merit." [ Post Comment ] Comment #6 posted by FoM on February 02, 2005 at 15:46:09 PT Heads Up: CNN Anderson Cooper 360 AIRS: 7-8 p.m. ET Monday-Friday Tonight's showWednesday, February 2, 2005 A look at the increase in heroin abuse by adolescents and the more potent form of the drug that's on the streets. Tune in at 7 p.m. E T. http://www.cnn.com/CNN/Programs/anderson.cooper.360/ [ Post Comment ] Comment #5 posted by afterburner on February 02, 2005 at 13:24:11 PT Chink in the Rusty Armor of Cannabis Prohibition This affair and its disposition is another chink in the rusty armor of cannabis prohibition. As has been discussed here for years, finding inactive cannabis metabolites in the urine or blood of a cannabis consumer does not indicate impairment. The federal government's push-down fiction that it does is scientifically indefensible. Now, with medical cannabis patients in ten+ states using state-approved medicine, the number of present and future court challenges will put this fiction to rest for good. RIP! [ Post Comment ] Comment #4 posted by AOLBites on February 02, 2005 at 12:19:51 PT screwy legal system -=snip=- Washburn sued Columbia in an Oregon trial court, claiming that the company failed to accommodate his disability under Oregon law. -=snip=-all he asked for is proof?!-=snip=- 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. -=snip=- [ Post Comment ] Comment #3 posted by runruff on February 02, 2005 at 11:57:10 PT: Top heavy Government I heard on c-span this morning that the department of home secerity had over 188,000 employees alone. In 1953 the national budget was 3 billion dollars and was thought at the time to be outrages. I wonder sometimes if my fathers generation if alive today, would they be marching on D.C.? I am sure that by Jefferson's standard of government this is long over due. Bread and games. It's old but successful ploy still working today.Namaste [ Post Comment ] Comment #2 posted by Sam Adams on February 02, 2005 at 10:25:02 PT loophole I'm sure when our future ancestors are sifting through the ruble of our fallen civilization, they will unearth stuff like this and say, "look at the profusion of obscure laws piled upon laws, choking off the basic productivity of humanity until even ekeing out a basic existence was impossible." There are plenty of other failed societies just like ours. Ridiculous layers of counter-productive laws and decrees, show trials, corruption, upper class taking too much of the net productivity, etc. Over-centralization, anyone? In 25 years, half of the employees in the US will be working for the federal government. [ Post Comment ] Comment #1 posted by kaptinemo on February 02, 2005 at 09:25:05 PT: Oh, man, talk about hair-splitting You can expect to see that little loophole legislated out of existence, and soon... [ Post Comment ] Post Comment