In our last two posts related to this issue, we’ve discussed how states have interpreted and applied their own laws regarding medical marijuana use in the context of employment discrimination lawsuits when faced with opposing federal law under the Federal Controlled Substances Act. In Noffsinger v. SSC Niantic Operating Company LLC, 2017 WL 3401260, the Connecticut Supreme Court held that any person who used marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refused to employ them for this reason. In Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (2017), the Massachusetts Supreme Court concluded that a plaintiff may seek a remedy through claims of handicap discrimination in violation of Massachusetts General Law chapter 151B after she was terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana.
While these rulings are gaining wider acceptance, they are not uniform. Other states continue to have opposing and controlling law set years ago, prior to the rising acceptance of medical marijuana as a treatment for various illnesses. One such state is Oregon. In 2010, the Supreme Court of Oregon heard an appeal from an employer who terminated an employee for his use of medical marijuana. The employee brought suit alleging the employer engaged in disability discrimination. The Supreme Court of Oregon disagreed.
In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518 (2010), the plaintiff stated that he suffered from a variety of debilitating medical issues for more than 10 years, such as panic attacks, nausea and vomiting. He eventually consulted with a physician for the purpose of obtaining a registry identification card under the Oregon Medical Marijuana Act. The physician signed a statement that the employee had a “debilitating medical condition” and that marijuana might mitigate the symptoms or effects of the plaintiff’s condition. The doctor’s statement was not a prescription, but it did conform with the terms of the Oregon Medical Marijuana Act which directed the state to issue registry identification cards to persons when a physician stated that “the person has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects” of that condition. ORS 475.309(2).1. No prescription was required as a prerequisite for obtaining a registry identification card in Oregon.
While a number of issues were discussed, the Supreme Court ultimately held that under Oregon’s employment discrimination laws, the plaintiff’s employer was not required to accommodate the employee’s use of medical marijuana. The court noted that as a matter of statutory interpretation, the employee’s use of medical marijuana was authorized under state law. However, the employer argued that state law did not require accommodation of the employee’s medical marijuana use because marijuana possession was unlawful under federal law and that Oregon’s discrimination law was to be construed consistently with the Federal Americans with Disabilities Act (ADA), and that the ADA did not permit the use of marijuana because marijuana was an illegal drug under federal law. The employer further argued that the Supremacy Clause of the United States Constitution required the court to interpret Oregon’s statutes consistently with the federal Controlled Substances Act and that to the extent that ORS 475.306(1) affirmatively authorized the use of medical marijuana, federal law preempted that subsection and that, without any effective state law authorizing the use of medical marijuana, the employee’s use of that drug was an “illegal use of drugs” within the meaning of ORS 659A.124.
The only issue that the employer’s preemption argument raised was whether federal law preempted ORS 475.306(1) to the extent that it authorized the use of medical marijuana. In holding that federal law did preempt that subsection, the court stated that it did not hold that federal law preempts the other sections of the Oregon Medical Marijuana Act that exempt medical marijuana use from criminal liability. The court also noted in dicta that it expressed no opinion on the question whether the legislature, if it chose to do so and worded Oregon’s disability law differently, could require employers to reasonably accommodate disabled employees who use medical marijuana to treat their disability; they were merely interpreting and limiting their opinion to the laws that the Oregon legislature had enacted at that time.
What this means is that employees and employers alike, as well as insurance adjusters, must be very aware of their state’s rulings on employment discrimination lawsuits that arise out of the use of medical marijuana. As more and more states legalize the use of medical marijuana, expect to see continuing conflict between state and federal law with differing opinions depending on the state in which you, your company, or your clients reside.