YOU KNEW IT WOULD HAPPEN -- SOONER OR
LATER
Columbia Forest Products, Inc. in Oregon, like many employers,
has a workplace drug policy which
prohibits employees from reporting
for work with a controlled substance in their system.
Controlled substances
included "all forms of narcotics,
and cannabis." The employer's drug tests could indicate whether
an employee
had used marijuana within 2-3 weeks prior to
taking the test. It could not reveal whether the employee who
had
used marijuana was impaired as a result.
The employee in the case at hand had a sleep disorder for which
he had been prescribed prescription drugs.
Those drugs were somewhat effective but his doctor prescribed
marijuana under Oregon's medical marijuana
program.
The new prescription was more effective.
However, the employee's drug test was negative. He claimed
that he was disabled under the state's
disability law and a reasonable accommodation he sought was exemption
from
the company's drug policy. The
company refused the request, discharged the employee, and he brought
suit alleging
the employer failed to make a reasonable accommodation
as required by the law.
The trial court granted summary judgment to the employer reasoning
that he was not disabled because the
original prescription mitigated
the negative effects of the employee's disorder and that problem, having
been alleviated
through mitigating medication, left the employee no
longer "disabled" and entitled to a reasonable accommodation.
The employee appealed and the intermediate appellate court reversed
reasoning that the state legislature did
not intend to include the concept
of mitigating factors in the definition of a disability for which a
reasonable
accommodation is warranted.
Yet another appeal to the state's Supreme Court resulted in the
high court adopting
the reasoning that the effectiveness of the original
mitigating measures (i.e., conventional prescription drugs) meant
that
the employee's disorder did not rise to the level of a "substantial
limitation on a major life activity." Thus, the
employee was not a "disabled
person" entitled to a reasonable accommodation. The trial court's grant of summary
judgment for the employer was
upheld.
This case highlights the confusion an employer faces when it
must comply with fundamentally opposing legal
requirements.
In this case the employer had the means to pursue the case to
its penultimate point and a successful
outcome.
Another employer might have been left without those means and
had been stuck without viable options.
Bottomline: drug use in the workplace
remains a factor with which all employers should be familiar. All the
alarms and warnings about the horrendous
physical and financial impacts of drug use in the workplace promulgated
back in the 1990s should not now be ignored. Employers must remain vigilant and protect
their workforces from the
ravages of illegal drugs. It only gets worse. Methamphetamine
("meth") was just emerging as a significant danger
10 – 15
years ago. Now it has joined
the list of deadly addictive substances that can easily cause immense
harm to
any employer and its workforce.
Columbia,
Maryland Washington D.C.
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