Oregon Supreme Court Narrows Definition of Disabled Worker
October 2006 — In Washburn v. Columbia Forest Products, Inc., 340 Or 469, 134 P.3d 161 (2006), the Oregon Supreme Court was faced with the question under the Oregonians with Disability Act of whether a person’s disability should be assessed with or without regard to measures which mitigate the disability.
The Supreme Court held that a physical impairment corrected by mitigating measures does not rise to the level of a disability under a state disability act. The Court reversed a Court of Appeals decision.
The ACLU of Oregon filed an amicus brief, also called a friend-of-the-court brief, because we believe Oregon employers should not be able to defeat the rights of Oregon workers as disabled persons and as registered medical marijuana patients based solely on the workers’ choice of medicine. We are disappointed with the Court’s decision in this case.
Robert Washburn brought an action against his employer, Columbia Forest Products, Inc., alleging that he was a disabled worker and the company had failed to reasonably accommodate his disability under ORS 659A.112. Mr. Washburn suffered from long-term injuries that resulted in spasms in his leg and shoulder, which interfered substantially with his sleep at night. Mr. Washburn’s doctor subsequently approved his participation in the Oregon Medical Marijuana Program. Mr. Washburn found that smoking marijuana in the evening before bed allowed him the sleep he had been missing for years.
The employer had a workplace drug policy, which was violated when Mr. Washburn’s urinalysis showed metabolites of medical marijuana.
Plaintiff asked the employer to accommodate his disability by using a different test, a blood test, which would detect whether Plaintiff was under the influence of marijuana while on the job, rather than detect the presence of non-impairing metabolites.
A threshold question under the Oregonians with Disability Act is whether a person has a disability, defined as a substantial limitation of a major life activity caused by physical or mental impairment. Here the major life activity was Mr. Washburn’s loss of sleep.
The Supreme Court held that where an individual’s symptoms can be mitigated so that they are not substantially limited in a major life activity then that person is not a “disabled individual” as defined by Oregon law. The Court found that Mr. Washburn was able to mitigate his spasms and obtain a regular night’s sleep through the use of medication. Thus he was not substantially limited in any major life activity and, thus, not disabled.
The ACLU of Oregon filed a joint amicus curiae brief with the National Organization for the Reform of Marijuana Laws and Americans for Safe Access.
Cooperating attorney William N. Later represented the ACLU of Oregon and Leland Berger represented NORML and ASA.