Pubdate: Fri, 05 May 2006
Source: Oregonian, The (Portland, OR)
Copyright: 2006 The Oregonian
Contact:  http://www.oregonlive.com/oregonian/
Details: http://www.mapinc.org/media/324
Author: Ashbel S. Green, The Oregonian
Note: The decision is at http://www.publications.ojd.state.or.us/S52254.htm
Bookmark: http://www.mapinc.org/topics/Columbia+Forest
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)
Bookmark: http://www.mapinc.org/testing.htm (Drug Test)

FORMER MILLWRIGHT LOSES KEY MARIJUANA CASE

Columbia Forest - the State Supreme Court Ruling Also Narrows the
Guidelines for Determining Who's Disabled

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."
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MAP posted-by: Richard Lake