Oregon Supreme Court To Medi-Pot Patients: You Are Second Class Citizens!

  • by Paul Armentano, NORML Deputy Director April 27, 2010

    [Editor’s note: This post is excerpted from this week’s forthcoming NORML weekly media advisory. To have NORML’s media advisories delivered straight to your in-box, sign up for NORML’s free e-zine here.]

    An employer may terminate an employee for his or her off-the-job marijuana use, even if the employee is authorized under state law to use cannabis medicinally, the Oregon Supreme Court ruled last week.

    In a 5 to 2 decision, the Court determined that an employee who uses marijuana in accordance with state law is nonetheless “engaged in the illegal use of drugs” and may be fired for his or her off-the-job conduct.  Because marijuana remains classified as an illicit Schedule I drug under federal law and may not be legally ‘prescribed’ by a physician, the Court opined that employers should not be mandated to accommodate workers who engage in its use.

    “[T]he Controlled Substances Act must authorize a licensed health care professional to prescribe or administer the controlled substance,” the majority determined.  “As noted, under the Controlled Substances Act, physicians may not prescribe Schedule I controlled substances for medical purposes.  … Because employee did not take marijuana under supervision of a licensed health care professional and because the authorization to use marijuana found in ORS 475.306(1) is unenforceable, it follows that employee was currently engaged in the illegal use of drugs and, as the commissioner found, employer discharged employee for that reason.”

    Commenting on the Court’s decision, NORML Deputy Director Paul Armentano said: “This ruling isn’t about workplace safety; it’s about the Court upholding discrimination – plain and simple. It is absurd for the majority of the Court to argue that medical marijuana patients are allowed certain protections under state law while simultaneously arguing that these same patients lack the legal right to earn a living.”

    Despite the Court’s ruling, the majority stated that the federal Controlled Substances Act does not preempt provisions of the Oregon Medical Marijuana Act that exempt patients’ possession, manufacture, or distribution of medical marijuana from state criminal liability.

    Writing for the dissent, Justice Martha L. Walters opined: “I do not understand why, in our system of dual sovereigns, Oregon must fly only in federal formation and not, as Oregon’s motto provides, ‘with her own wings.’  Therefore, I cannot join in a decision by which we, as state court judges, enjoin the policies of our own state and preclude our legislature from making its own independent decisions about what conduct to criminalize.”

    The Court’s decision overturned a previous decision from the Bureau of Labor and Industries ordering the employer to pay damages, and a Court of Appeals decision affirming that judgment.

    In 2006, the Oregon Supreme Court similarly ruled (Washburn v. Columbia Forest Products, Inc.) that employers may fire workers for failing a company mandated drug test for marijuana, even if their use is authorized by state law.

    In 2008, the California Supreme Court issued a similar decision (Ross v. Ragingwire Telecom), finding:  “California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.”

    Full text of the Oregon Supreme Court decision (Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries) is available online at: http://www.publications.ojd.state.or.us/S056265.htm.

    60 responses to “Oregon Supreme Court To Medi-Pot Patients: You Are Second Class Citizens!”

    1. Matt says:

      I said it before & I’ll say it again. The only reason marijuana is still illegal is because it’s the last socially acceptable form of bigotry.

    2. Don says:

      We Now need to start hitting our Legislators Hard in Washington with the Re-Classification and Re-Legalization Issue at the Federal Level and leave it to the Individual States to regulate as “They” See Fit!

    3. jeffrey brocato says:

      its time to stand up and vote the bums (that refuse to rectify the past failed legislation or morality)out of office. weed legal for medical reasons, or good bye senator/congressmen. READ:white/grey hair bad, young daring opened minded good.

    4. patty says:

      We recently got in trouble with the law and i dont smoke or drink but my husband use to use due to the law in idaho i got introuble being at home when my husband assisted in a sale my husband got shot when he was younger he still has stmoach and back pain and still fragments of the bullet in his back so also other medical problems i belive that the court is making a bad judgement over him due druning this crime he was sober and trying to stay clean he is a good hard worker whom pays taxes and needs a second chance i beleive that the law in idaho is pretty unfair their are bigger fish like people whom kill or molest kids i beleive that if this is legal people whouldnt abuse it

    5. Mike Stroup says:

      In a free country, the only rational criteria for evaluating an employee’s viability for retention would be sustained job perormance. Otherwise, all employee conduct or lack of conduct that did not degrade job performance below established production standards would be none of an employeer’s business, or the business of government at any level, or anyone else’s for that matter. Even then, it would be failure to meet job standards that would be at issue, not what employee choices may or may not have contributed to sub-standard performance. Of course, if an employeer were in fact a slave owner and the employee an unwilling or willing slave, it would be another matter, and there would be no facet of an employee’s life over which an employeer could not impose control. In a free country, if a worker is doing the job, leave them alone; if not, fire them.

    6. William says:

      “California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.”

      Why would anyone legalize a medicine that only the jobless are allowed to use? There is nothing in a healthy, rational brain that suggests people should be fired for using perscribed medicine.

    7. Robin says:

      Sign the petition at http://www.octa2010.org then become a fan on Facebook: http://www.facebook.com/octa2010


    8. moldy says:

      Justice Martha L. Walters has some balls but you wouldn’t think it with a last name like “Walters”. It appears that some of the court justices are positioning for a Federal job. This makes it a long road for MMJ patients until it’s legal for all.

    9. Tyler Mendez says:

      Fuck you Oregon. Smoking marijuana on or off the job should be compared as drinking on or off the job. But of coarse are jack ass government wont stop the prohibition. It’s time to end it. I am a medical marijuana patient who can’t obtain marijuana in my state because of federal and state law. Why can’t the government see that marijuana is pretty much just a substitute for alcohol and much safer at that. MANY PEOPLE HAVE DIED FROM ALCOHOL BUT NOT MARIJUANA. Support NORML

    10. kyle says:

      this is disgusting