Former millwright loses key marijuana case

May 04, 2006

Ashbel S. Green, The Oregonian

In a widely watched employment case, the Oregon Supreme Court on Thursday ruled against a former millwright who sued Columbia Forest Products Inc. after being fired for smoking marijuana at night to alleviate leg spasms that prevented him from sleeping.

The court ruled that Robert Washburn did not qualify for protection under Oregon disability law because medication allowed him to function normally.

The decision addressed Washburn's specific circumstances, but it offered no guidance for other employers who are grappling with whether they must accommodate disabled workers who smoke medicinal marijuana.

But on a broader issue, Oregon's top court followed a controversial 1999 U.S. Supreme Court decision that significantly narrowed the number of workers who are covered by the Americans with Disabilities Act. The Oregon Court ruled that Washburn may have a disability, but because medication allowed him to function normally, he does not qualify as disabled.

If Washburn were deemed disabled under the law, his employer would have been required to make a reasonable accommodation -- in his case, letting him take a more sophisticated drug test to gauge whether he was too impaired to work.

"This decision probably affects more people than the marijuana issue," said Philip Lebenbaum, Washburn's attorney.

Washburn initially took prescription drugs for his pain, but later his doctor approved his participation in Oregon's medical marijuana program. Washburn smoked it before he went to bed and said it was more effective than the prescription drugs.

Columbia Forest Products prohibits employees from coming to work with illegal drugs in their system. The drug test used by the company did not determine whether workers were impaired, but merely whether drugs were in their systems. After drug tests discovered Washburn's marijuana use, he asked for an accommodation under Oregon disability law that he be allowed to take a test that determined whether he was impaired.

Columbia Forest Products declined, and fired him.

Washburn sued.

A trial court sided with Columbia Forest Products, but the Oregon Court of Appeals sided with Washburn.

Significantly, the Court of Appeals parted ways with the U.S. Supreme Court, which in 1999 ruled against a pair of visually impaired pilots whom United Airlines refused to hire. In that case, the court ruled that the ADA did not protect the would-be pilots because glasses allowed them to function normally.

Although noting similarities in the state and federal laws, the Court of Appeals ruled that Oregon's statute was not in "lockstep" with the ADA. The Court of Appeals concluded that the Legislature did not intend to take such a narrow approach to protecting disabled workers.

The Oregon Supreme Court disagreed, saying the Legislature intended courts to make individual assessments of disability claims.

"In this case, plaintiff argues that he is disabled by virtue of his leg spasms, a condition that he claims substantially limits one of his major life activities, i.e., sleeping. However, as the trial court noted below, it is undisputed that plaintiff is able to counteract those leg spasms and the resulting sleep problems by using prescription medication. As a result, we conclude that, because plaintiff can counteract his physical impairment through mitigating measures, his impairment does not, at this time, rise to the level of a substantial limitation on a major life activity. Consequently, we conclude that plaintiff is not a 'disabled person,' " Chief Justice Paul De Muniz wrote for a unanimous court. "Because plaintiff is not a 'disabled person' under those statutes, employer had no statutory duty to accommodate plaintiff's physical limitation in the manner sought by plaintiff."

Although the court declined to address the use of marijuana more broadly, Justice Rives Kistler wrote in a concurrence that he thought federal anti-drug laws would trump Oregon medical marijuana law. But Kistler's opinion leaves the question open because it was not part of the majority opinion.

Still, Scott G. Seidman, who represented Columbia Forest Products, said the decision was a big win for employers.

"Oregon employers now know that the law is the same under Oregon disabilities law as it is under the federal Americans with Disabilities Act," Seidman said. "That's a huge thing for them to know."

Ashbel S. Green:; 503-221-8202

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