Recent Developments from Around the States

Holding that Washburn's status as a disabled person under Oregon law must take into account any mitigating measures that ameliorate his impairment, the Oregon Supreme Court reversed the Court of Appeal's judgment to the contrary and held that Washburn's medical marijuana use effectively counteracted his muscle spasms enough to take him outside of the definition of 'disabled' under state statute.

Oregon Medical Marijuana User Not 'Disabled'

Reversing the Court of Appeal's decision regarding the definition of 'disabled' under Oregon anti-discrimination law, the Oregon Supreme Court held that because a medical marijuana user was able to counteract his physical impairment through mitigating measures, his impairment did not rise to the level of a substantial limitation on a major life activity and was therefore not a 'disability' for purposes of state law. Washburn v. Columbia Forest Products, Inc., 2006 WL 1173152 (Or. May 4).

Plaintiff Robert Washburn, a millwright at defendant Columbia Forest Products, Inc. (Columbia Forest), suffered from muscle spasms in his legs that, left untreated, limited his ability to sleep. While Washburn had previously used prescription medication to alleviate the spasms and allow him to rest, his doctor later approved his participation in Oregon's medical marijuana program. Washburn, finding the use of marijuana more effective than the prescription drugs at improving his condition, began smoking each night before going to bed. Columbia Forest has a workplace drug policy that prohibits employees from reporting to work with a controlled substance, defined to include cannabis, in their system, and imposes discipline, up through and including termination, on employees that violate this policy. When Columbia Forest's tests of Washburn's urine detected the presence of marijuana in his system, he was placed on a leave of absence. While Washburn subsequently requested that his employer accommodate his condition by allowing him to take a drug test capable of determining present drug impairment, the parties' negotiations in that regard did not produce an agreement, and Columbia Forest ultimately terminated Washburn's employment.

Holding that Washburn's status as a disabled person under Oregon law must take into account any mitigating measures that ameliorate his impairment, the Oregon Supreme Court reversed the Court of Appeal's judgment to the contrary and held that Washburn's medical marijuana use effectively counteracted his muscle spasms enough to take him outside of the definition of 'disabled' under state statute.