concurring.
I join the majority’s opinion holding that plaintiff is not a “disabled person” within the meaning of ORS 659A.100(l)(a). I write separately because, in my view, plaintiffs employment discrimination claim suffers from an additional defect: Federal law preempts state employment discrimination law to the extent that it requires employers to accommodate medical marijuana use.
As the majority notes, plaintiffs doctor approved plaintiffs participation in Oregon’s medical marijuana program, and plaintiff smokes marijuana at night to help him sleep. Defendant employs plaintiff and has adopted a zero-tolerance policy; defendant prohibits its employees from reporting to work with the “presence of [a] controlled substance, intoxicant, or illegal drug in their system.” Because plaintiff violated that policy, defendant terminated him. Plaintiff brought this action claiming that, because he was an otherwise qualified disabled employee, ORS 659A.112(2)(e) required defendant to accommodate his medical use of marijuana and that the failure to do so constituted employment discrimination.
I agree with the majority that plaintiff is not a “disabled person” who can invoke the employment discrimination laws. Even if he were, however, federal law still would preempt plaintiffs claim that his employer must accommodate his medical use of marijuana. Plaintiff notes that ORS 659A.112(2)(e) requires employers to “make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled [employee]” unless doing so would impose an undue hardship on the employer. Plaintiff recognizes that, as a matter of state law, employers do not have to accommodate the “illegal use of drugs.” ORS *481659A.124. He observes, however, that the “illegal use of drugs” does not include “the use of a drug taken under the supervision of a licensed health care professional [.]” See ORS 659A.100(l)(c) (defining “illegal use of drugs”).1 Plaintiff argues that, because he uses marijuana under his physician’s supervision, the employment discrimination statutes require defendant to accommodate his medical use of marijuana.
The difficulty with plaintiffs argument, in my view, is that federal law preempts the state employment discrimination statute to the extent that it requires defendant to accommodate plaintiffs medical marijuana use. The federal Controlled Substances Act prohibits possessing, manufacturing, dispensing, and distributing marijuana. 21 USC §§ 841(a), 844. That prohibition applies even when a person possesses, manufactures, dispenses, or distributes marijuana for a medical use. United States v. Oakland Cannabis Buyers’ Cooperative, 532 US 483, 494 and n 7, 121 S Ct 1711, 149 L Ed 2d 722 (2001) (no medical necessity defense to prohibition against distributing marijuana; holding applies equally to other prohibited acts). Plaintiff cannot use marijuana without possessing it, and the federal prohibition on possession is inconsistent with the state requirement that defendant accommodate its use.
State law cannot require what federal law prohibits; when the two laws conflict, federal law controls. See California v. ARC America Corp., 490 US 93, 100-01, 109 S Ct 1661, 104 L Ed 2d 86 (1989) (state law preempted when “it actually conflicts with federal law, that is, when compliance with both state and federal law is impossible”). It follows that the Controlled Substances Act preempts state employment discrimination law to the extent that the state law requires accommodation of plaintiffs medical use of marijuana.
*482Plaintiff has advanced only one argument in response. He relies on an informal opinion that the Oregon Attorney General issued in response to the United States Supreme Court’s decision in Gonzales v. Raich, 545 US 1, 125 S Ct 2195, 162 L Ed 2d 1 (2005). In that opinion, the Attorney General reasoned that Raich, which upheld Congress’s authority to prohibit the medical use of marijuana, would not affect the operation of Oregon’s medical marijuana program.
The Attorney General’s reasoning does not advance plaintiff’s claim that state law requires defendant to accommodate his medical marijuana use. Among other things, the Oregon Medical Marijuana Act exempts, from the operation of state criminal laws, persons who possess a “registry identification card” and who are “engaged in * * * the medical use of marijuana.” ORS 475.309(1). In reasoning that the decision in Raich did not affect Oregon’s medical marijuana program, the Attorney General focused on that exemption. Noting that “[t]he [Oregon Medical Marijuana] Act protects medical users from state criminal prosecution for production, possession, or delivery of a controlled substance,” the Attorney General concluded that the fact that the federal government criminalizes the medical use of marijuana does not require the state to do so.
The fact that the state may choose to exempt medical marijuana users from the reach of the state criminal law does not mean that the state can affirmatively require employers to accommodate what federal law specifically prohibits. Federal law preempts the latter decision but not the former. In my view, given the Controlled Substances Act, defendant had no binding state obligation to accommodate plaintiffs medical marijuana use.
ORS 659A.100(l)(c) provides:
“ ‘Illegal use of drugs’ means any use of drugs, the possession or distribution of which is unlawful under state law or under the Controlled Substances Act, 21 U.S.C.A. 812, as amended, but does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized under the Controlled Substances Act or under other provisions of state or federal law.”