In Emerald v. Bureau of Labor, The Oregon Court of Appeals affirmed a Bureau of Labor and Industries determination that an employer must reasonably accommodate an employee’s off-duty medical marijuana use.  However, the case was affirmed on a technicality – again leaving Oregon employers wondering if they really have to accommodate an employee’s medical marijuana use. 

The Court of Appeals upheld the BOLI determination on the basis that the employer failed to raise its defenses before BOLI and could not do so for the first time on appeal.  Most notably, the employer did not raise at BOLI what was probably its best argument:  that it was not obligated to accommodate medical marijuana use because such use is unlawful under federal law. 

What does this mean for Oregon employers?  It means we still don’t have a clear answer and probably won’t any time soon.  The Stoel Rives World of Employment boldly predicts the Oregon Supreme Court will address this issue in the next two or three years, and when it does, it will hold that employers do not have to accommodate medical marijuana.  Until then, this will remain a thorny issue and a hotbed of litigation.  If you have a marijuana accommodation issue come up in your workplace, we strongly advise seeking counsel from an employment lawyer