Legal Commentary

May Oregon Law Ban Employers? Firing Employees Because the Employees Use Medical Marijuana?

By Eugene Volokh

No, held Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus. (Ore. Sup. Ct. Apr. 14), concluding that Oregon medical marijuana law was in relevant part preempted by the federal Controlled Substances Act. An excerpt from the end of the court?s opinion:

First, employer preserved its challenge that, as a result of the Controlled Substances Act, the use of medical marijuana is an illegal use of drugs within the meaning of ORS 659A.124 [the relevant exception from Oregon disability discrimination law]. Second, two potentially applicable exclusions from the phrase ?illegal use of drugs? ? the use of drugs authorized by state law and the use of drugs taken under the supervision of a licensed health care professional ? do not apply here. Third, regarding the first potentially applicable exclusion, to the extent that ORS 475.306(1) [the Oregon medical marijuana statute] authorizes the use of medical marijuana, the Controlled Substances Act preempts that subsection. We note that our holding in this regard is limited to ORS 475.306(1); we do not hold that the Controlled Substances Act preempts provisions of the Oregon Medical Marijuana Act that exempt the possession, manufacture, or distribution of medical marijuana from state criminal liability. Fourth, because employee was currently engaged in the illegal use of drugs and employer discharged him for that reason, the protections of ORS 659A.112 [the disability discrimination ban], including the obligation to engage in a meaningful interactive discussion, do not apply. It follows that BOLI erred in ruling that employer violated ORS 659A.112.

Full post as published by The Volokh Conspiracy on May 03, 2010 (boomark / email).