Reasonable Accommodation and the Oregon Medical Marijuana Act Ed Johnson Oregon Law Center August 9, 2013 Rental Housing It is unlawful to refuse to make reasonable accommodations in rules, policies, practices or services when such accommodations may be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. Federal Fair Housing Act 42 U.S.C. 3604(f)(3) Oregon law ORS 659A.145
What qualifies as a disability? A person with a disability is someone who: (1) has a physical or mental impairment that substantially limits one or more major life activities; or (2) has a record of such impairment; or (3) is regarded as having any such impairment. Exception to thedefinition of Disability: Drug Use People recovering from drug addiction are considered disabled unless currently engaged in the illegal use of a controlled substance.
Examples of Reasonable Accommodations or Modifications: df Need a service and/or companion animal. Need a parking spot close to unit. Need time to get help with housekeeping. Need to install wheelchair ramp. Need dto not be exposed to certain ti chemicals. Need time to get help with noise violations. Need representative payee for rent. Need accommodation for background check. The Nexus The accommodation must be related to the person s disability and must lead to compliance with the rental agreement or in assisting the person in equal enjoyment of the property.
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Interactive Process Even if the accommodation request is seen as unreasonable, provider (employer, etc.) should respond to request and offer alternatives. Not responding to an accommodation request is viewed, in effect, as a decision by provider to deny. Reasons for denial Theaccommodation would create: 1. An undue hardship on provider 2. An alteration to the nature of the program 3. A direct threat to the safety or health of others
The Oregon Medical Marijuana Act (OMMA) First passed in 1998 to allow use of Marijuana when certified by a physician for certain medical conditions (cancer, glaucoma, etc). Measure 74, passed in 2010, built on OMMA by allowingfor the licensing of non profit dispensaries for use by OMMA patients. What OMMA entails OMMA rights and limitations: OMMA removes state penalties for medical marijuana possession/use. Patients may have six mature cannabis plants, 18 immature seedlings, and 24 ounces of usable cannabis (Senate Bill 1085) A physician in Oregon with primary responsibility may certify the use of marijuana by the patient for treatment of a debilitating medical condition. Marijuana derivatives, such as hash oil, are not covered/protected by OMMA.
Eligibility questions Categorically eligible: Cancer patients,,glaucoma patients, Alzheimer s patients, and those with advanced immune diseases. A patient t can show a need under OMMA if they have a documented condition that produces one or more of: Cachexia, severe pain, severe nausea, seizures, persistent spasms (e.g. MS), or other medical conditions later adopted. Excluded/not eligible: 1. those withfelony convictionsfor selling/manufacturing Schedule I or II drugs, and 2. nonresidents of Oregon Federal law and marijuana Under federal law,,the euse of medical marijuana a remains a crime: Marijuana is classified as a Schedule 1 substance under the Controlled Substances Act, 21 USC 801 et seq. TheSupremeCourt hasconfirmed that Congress can regulate purely local uses of marijuana and that, under federal law, marijuana has no accepted medical applications. Gonzales v. Raich, 545 US U.S. 1, (2005); U.S. v. Oakland Cannabis Buyers Coop., 532 U.S. 483, 491 (2001).
HUD memo on Medical Marijuana In 2011, HUD issued a memorandum stating that Public Housing Agencies must deny admission to those individuals who are currently using marijuana. While PHAs may not admit itomma patients, t the HUD memo states that PHAs have the discretion to evict (or not) a current resident that becomes an OMMA patient. Regardless of preference for eviction/non eviction, PHAs are nonetheless required to include standards or lease provisions that allow the agency or owner to evict a resident for illegal drug use. Emerald Steel facts Patient received certification in 2002 from his physician to use medical marijuana to treat nausea, vomiting, stomach cramps, and anxiety attacks. In 2003, patient was hired by Emerald Steel on a temp basis and were considering permanent hire. Knowing a drug test would be required, patient informed Emerald of his patient status. Emerald decided against permanently hiring patient and patient sued, alleging discrimination in violation of ORS 659A (OMMA).
Emerald Steel Result The Supreme Court of Oregon held that: The provision of OMMAaffirmatively authorizing the use of medical marijuana is preempted by the Federal Controlled Substances Act (CSA). CSA lists marijuana as Category I narcotic with no recognized therapeutic uses; federal law still identifies state sanctioned medical marijuana use as illegal use of drugs. An employee engaged in the illegal use of drugs is not entitled to reasonable accommodation. dti Private Market Housing in Oregon Is the Emerald Steel case dispositive for OMMA patients in housing? Probably. Because the Controlled Substance Act preempts the Oregon Medical Marijuana Act to the extent that state law affirmatively authorizes the use of medical marijuana, even state certified medical marijuana use constitutes illegal drug use and the OMMA protections do not apply when employment and/or tenancy are terminated for that reason.