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Problem: Several weeks ago, the Oregon Court of Appeals dealt a blow to employers fighting medical marijuana in the workplace, letting stand an administrative decision that had granted a victory to a medical marijuana user (Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries). Where does this leave Oregon employers? Do you know what you would do if one of your employees tested positive or voluntarily disclosed medical marijuana use?

Before we get to the solution, let’s look at the facts of the case and the decision by the Court of Appeals. In 2003, temp worker Anthony Scevers began working as a steel press operator at Emerald Steel Fabricators in Eugene. The company typically contracted with staffing agencies to evaluate workers for several months before hiring them. Unknown to Emerald Steel, Scevers was one of the many thousands of Oregonians who have medical marijuana cards and regularly smoked marijuana. However, he never smoked while at work, and there is no evidence that he was ever impaired while there. After a few months, Scevers approached his supervisor to see whether his drug use would impact his chance of becoming a regular employee, and the supervisor told Scevers that they would not hire him. Rather than filing a lawsuit in court, Scevers filed a charge of discrimination with the Oregon Bureau of Labor and Industries alleging that Emerald Steel discriminated against him because of a disability.

At an administrative hearing in early 2005, the employer decided not to introduce evidence to support certain defenses because the state of medical marijuana law was in flux. This would ultimately be its downfall. Soon after the hearing, the tide started turning in employers’ favor: first, the U.S. Supreme Court issued a key decision in June 2005 confirming that marijuana remained an illegal drug (Gonzalez v. Raich), and then the Oregon Supreme Court upheld an employer’s right to terminate an employee who tested positive while at work for medical marijuana in May 2006 (Washburn v. Columbia Forest Products). However, it was too late for Emerald Steel to raise its best defenses, and despite several attempts to reopen the hearing to argue these matters, the agency issued an order in favor of Scevers.

The Court of Appeals rejected the employer’s appeal in a fairly technical opinion, which focused more on procedural issues than it did on the underlying issue of medical marijuana.

The employer wanted to argue that marijuana is an illegal, controlled substance under federal law, and that state and federal employment laws do not protect illegal drug users. However, the Court of Appeals did not even let the employer make these arguments. Instead, it pointed out that the employer chose not to offer evidence to support these defenses at the time of the administrative hearing, and therefore the possible legal errors were not preserved for review.

Solution:  Prior to this decision, Oregon employers seemed to be winning the medical marijuana battle. Since 2005, employers were benefited by several legal decisions, and it seemed likely that momentum would continue in management’s favor. Will this decision turn the tide, or was it merely a speed bump en route to ultimate victory?

Certainly any decision by the second highest court in the state needs to be respected and cannot be taken lightly. Even though the decision was reached through technical grounds that are not likely to be repeated, it stands to reason that employers should tread cautiously until more definitive rulings are issued.

Moreover, this decision may comfort workers’ advocates who support looser workplace drug rules, leading to more battles down the road. Here are the lessons to be learned from this decision:

First, employers should ensure a drug-free workplace by requiring temporary workers to test clean for illegal substances before accepting placement.

Second, if any employee reveals that he or she possesses a medical marijuana card, employers might consider starting an interactive process with that worker to determine whether a true disability is present and whether other accommodations besides drug use will allow for the performance of essential functions.

Third, a cautious employer may choose to monitor the medical marijuana user to determine whether he or she is 鈥渋mpaired鈥� at work, which should allow for a justified termination. It may be difficult to reach this conclusion with any clarity, so the employer should apply normal 鈥渞easonable suspicion鈥� testing principles as it would with other employees: look for bloodshot eyes, poor work performance, impaired concentration and focus, drug odor, etc., and test employees in violation according to current company policies.

Rich Meneghello is a partner at the Portland office of Fisher & Phillips LLP, one of the oldest and largest employment law firms in the country, and is dedicated to representing the interests of management. He can be reached at [email protected] or 503-205-8044.