## Facts

- An employee with a serious gastrointestinal condition used marijuana to manage symptoms after other medications proved ineffective.
- The employee obtained authorization under the Oregon Medical Marijuana Act (OMMA) and held a registry identification card.
- Emerald Steel Fabricators, Inc. hired the employee through a staffing company as a temporary drill-press operator.
- Emerald Steel’s practice was to require a drug test as a condition of converting a temporary worker to permanent employment.
- The employee did not initially disclose his OMMA status; he disclosed it when told that a drug test would be required.
- Shortly after disclosure, Emerald Steel terminated the employee rather than proceed toward permanent hire, citing its policy against illegal drug use.
- The employee filed an administrative complaint with the Bureau of Labor and Industries (BOLI) alleging disability discrimination and failure to reasonably accommodate under Oregon disability-discrimination statutes.
- A BOLI administrative law judge and the BOLI Commissioner concluded the employee was a qualified individual with a disability and that the employer unlawfully failed to accommodate medical marijuana use.
- The Oregon Court of Appeals affirmed BOLI’s order, concluding certain arguments (including a federal-law theory) were not preserved.
- The Oregon Supreme Court allowed review, addressed preservation, and decided the merits.

## Issues

1. Whether the employer adequately preserved the argument that federal law (the Controlled Substances Act) rendered the employee’s marijuana use “illegal” for purposes of Oregon disability-discrimination law.
2. Whether Oregon disability-discrimination law requires an employer to reasonably accommodate an employee’s OMMA-authorized medical marijuana use when that conduct remains prohibited by the federal Controlled Substances Act.

## Decision

- The Oregon Supreme Court held the employer preserved its federal-law illegality argument and the Court of Appeals erred in refusing to reach it.
- The court reversed the Court of Appeals and set aside BOLI’s final order.
- The court held Oregon disability-discrimination law did not require the employer to accommodate the employee’s medical marijuana use because it is illegal under federal law.

## Legal Principles

- OMMA provides a state-law exemption from certain state criminal liability; it does not make marijuana use lawful for all purposes or alter federal prohibitions.
- Under Oregon disability-discrimination statutes, current “illegal use of drugs” is excluded from protection and from reasonable-accommodation requirements.
- For determining whether drug use is “illegal” under the statutory exclusion, federal law may control where the drug is prohibited under the Controlled Substances Act.
- An employer is not required to accommodate employment-related conduct that remains unlawful under federal law, even if the conduct is permitted or immunized under state law.

## Conclusion

The Oregon Supreme Court concluded that OMMA’s state-law authorization and immunity did not remove federal illegality under the Controlled Substances Act; therefore, Oregon disability-discrimination law did not require an employer to accommodate an employee’s ongoing medical marijuana use, and BOLI’s order requiring accommodation was reversed.


Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, 348 Or. 159, 230 P.3d 518 (Or. 2010)