Robert Washburn, an Oregon resident who used medical marijuana to control muscle spasms in his legs, sued his employer after he was fired for a positive drug test. The Oregon Supreme Court ruled in the case earlier this month, saying that the company was allowed to dismiss Washburn because he was not covered by Oregon's statute prohibiting workplace discrimination against disabled persons.

Washburn used medical marijuana at night to treat muscle spasms that limited his ability to sleep. He began using medical marijuana after discovering that it was more effective in helping him sleep than the prescription drugs he previously had taken.

After being dismissed from his job for testing positive for marijuana, Washburn sued his employer alleging disability-related discrimination. The Oregon Supreme Court found that since Washburn was able to remedy his sleep disruption through prescription medication, his impairment did not meet the criteria to qualify him as a “disabled person,” and therefore his employer did not have to accommodate his physical limitation through allowing the use of medical marijuana.

In a concurring opinion, Judge Kistler took the analysis beyond the Oregon statute that prohibits disability-related discrimination in the workplace, concluding that federal law preempts state employment discrimination law when it comes to accommodating medical marijuana use:  “The fact that the state may choose to exempt medical marijuana users from the reach of the state criminal law does not mean that the state can affirmatively require employers to accommodate what federal law specifically prohibits.” 

This Washburn decision is troubling for the future of marijuana law reform in the courts. First, Oregon’s high court states that there is a direct conflict between Oregon’s disability statute and federal law, with the latter superseding the former.  Second, the court draws a very narrow definition of what constitutes a disability – a definition which could be adopted by other states, resulting in restriction of the protections of other medical marijuana laws. 

There appears to be at least one silver lining. The majority’s opinion is narrowly drafted and does not say that an employer cannot be required to accommodate off-duty use of medical marijuana when the employee does qualify as disabled under Oregon’s law.  So there is likely room for more seriously disabled or ill persons who benefit from medical marijuana but not traditional prescription drug therapies to claim employment protections under the state disability law.