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Source: Oregonian, The (Portland, OR)
Author: Brent Hunsberger
Published: December 18, 2003
Copyright: 2003 The Oregonian
Contact: [email protected]
Website: http://www.oregonlive.com/oregonian/

Cases in Oregon courts examine whether workers can be fired for state-sanctioned use of marijuana as medicine.

Portland truck-maker Freightliner fired forklift driver John Thomas in January after the Teamster broke an overhead water line and subsequently tested positive for marijuana. Nearly a year later, the question of whether Thomas should be reinstated has ramifications for employers and employees statewide. 

That's because in addition to his Teamster card, Thomas carries something else in his wallet he claims makes his firing illegal: a state-issued medical marijuana registration card, which gives him the right to treat chronic pain by smoking the drug. 

Freightliner has asked a federal judge to block a labor arbitrator's order that Thomas, a 41-year-old motorcycle enthusiast, be put back to work. Thomas, in turn, is suing the truck-maker for discrimination under Oregon's disabilities act. 

A federal appeals court ruled this week that the federal Controlled Substances Act does not trump laws in nine states, including Oregon, that allows medical marijuana use. That decision puts a spotlight on Thomas' case and two others filed in state court, each of which addresses the question of whether and how companies are allowed to use drug tests while accommodating workers with state permission to smoke marijuana. 

Freightliner and other companies say they need drug tests to ensure a safe and drug-free work site. Complicating matters further, some employers risk losing millions in federal contracts if they don't abide by federal drug-free workplace laws. 

"We are putting the employer in a difficult spot," said Klaus Martin, a McMinnville physician who performs worker-injury evaluations and drug tests for employers. "We're saying here we allow medical marijuana. Then we turn around and say, 'Hey, you have to provide a drug-free environment.' " 

Much is at stake for employees, too. Medical marijuana advocates argue that without some accommodations, more than 6,000 legal marijuana users in the state won't be able to work. 

For those who don't smoke, the issue is becoming a safety concern as the number of medical marijuana cards continues to rise. 

"I wouldn't want to be near a forklift operator under the influence of marijuana," said Steve Hillesland, business agent for the International Association of Machinists & Aerospace Workers, District Lodge No. 24, which represents 800 workers at Freightliner. 

Competing laws and legal opinions have left both employers and employees dazed and confused. 

"There really is no guidance in the law on what should happen here," said Grant Higginson, state public health officer with the Oregon Department of Human Services, which issues the registration cards. 

Thomas and Freightliner, through their attorneys, declined to comment on their lawsuits. But court records show Thomas uses marijuana to treat pain from repeated injuries. He dislocated a shoulder and both knees several times in incidents both on and off work. He stopped using over-the-counter painkillers after suffering a severe reaction. 

In October 2002, doctor and medical marijuana activist Phillip Leveque authorized Thomas to use marijuana to treat his pain. Court records say Thomas smokes one to two joints a night before going to bed and claims to suffer no "morning after" effects. 

On Dec. 14, 2002, Thomas was operating a Zamboni forklift in a dimly lit part of a Freightliner warehouse when the forklift ruptured an overhead water supply pipe. The company halted work at the plant while co-workers cleaned up the damage. The repairs cost Freightliner $1,159, court records show. 

Two days later, Freightliner ordered Thomas to take a drug test. Thomas showed his bosses his medical marijuana documentation beforehand, then failed the test. Freightliner fired him in January. 

Thomas' union appealed his firing, alleging it violated its collective bargaining agreement with Freightliner. The labor arbitrator, Carlton Snow, acknowledged that Thomas' decision to operate a forklift in dim lighting was "a dangerous act." But he found no evidence Thomas was impaired by marijuana. 

Ruling favors worker Snow ruled that, even under the federal drug-free workplace act, Freightliner could not dictate what Thomas did on his own time as long as his marijuana use didn't impair his performance and that he be reinstated. 

State civil rights officials appear to have reached a similar conclusion in another case. Earlier this year, a Cottage Grove man filed a discrimination complaint with the Oregon Bureau of Labor and Industries, alleging that Emerald Steel Fabricators in Eugene improperly fired him for failing to disclose his medical marijuana use. 

In an interview, the man, who asked not to be identified out of fear that he might lose future jobs, said he smokes marijuana to treat severe nausea, vomiting and stomach cramps that increase with stress. 

Emerald Steel didn't learn of the man's medical marijuana card until March, when the company put him through a mandatory drug test as part of a 60-day performance review, he said. 

Emerald fired him 12 days later, the man said. 

David Gerstenfeld of the Bureau of Labor and Industries said his agency investigated the case and found evidence in the man's favor. The bureau declined to release additional details, citing its ongoing settlement negotiations with Emerald Steel. 

The former Emerald worker said he thinks employers should treat medically approved marijuana like any other drug prescribed for pain. 

"If you can prove you can do the job and not be dangerous and prove that you can do the job just as good as anyone else, I don't see what the problem is," he said. 

Emerald Steel President Donald Matthews disagrees. He said he thinks marijuana users are unfit for the workplace. 

"If they're not safe driving an automobile, why would they be safe working on machinery?" Matthews said. 

Other employers see another problem: a loss of federal revenue. The federal Drug-Free Workplace Act requires federal contractors to have policies prohibiting the use of illegal drugs. 

Freightliner, for example, has a seven-year, $300 million contract with the Pentagon to build trucks at its Portland plant. Complying with Oregon's medical marijuana act could put that contract in jeopardy, employer groups said. 

Employers say act allows firings Employers also say Oregon's Medical Marijuana Act allows for the firings. The act, approved by voters in 1998, says employers don't have to accommodate the medical use of marijuana "in any workplace." 

Phillip Lebenbaum, a Portland lawyer who represents Thomas and two other workers fired under similar circumstances, said he thinks the state disabilities act provides protection that the medical marijuana act does not. 

The Bureau of Labor and Industries, to some extent, agrees. The agency has issued a policy saying employers might have to make accommodations for cardholders who have qualified disabilities under the state disabilities act. Those accommodations have to be "reasonable" and could include changing the workers' shift so the employee doesn't show up to work under the influence of marijuana, bureau officials say. 

The policy also bars an employer from disciplining a qualified disabled worker for failing a drug test. 

But those protections do not extend to medical marijuana users who can't perform essential job functions, pose a safety hazard, disrupt the workplace or are visibly "under the influence," bureau officials say. 

A case pending before the Oregon Court of Appeals could soon clarify just how far the state disabilities act goes. 

Columbia Forest Products fired millwright Robert Washburn in March 2001 for violating the company's antidrug policy at its Klamath Falls mill. Washburn and the company, through their attorneys, declined to comment. But according to court records, Washburn twice failed drug tests before obtaining a medical marijuana card. Washburn said he needed marijuana to relieve him of 24 years of neck pain, court records show. 

Before firing him, the company put Washburn through a yearlong drug treatment program and put him back to work, only to have him fail a fourth drug test. 

Washburn sued, claiming the company violated the state disabilities act by failing to accommodate his off-premises marijuana use. Columbia's attorneys oppose such an accommodation on the grounds that it poses an unacceptable safety risk. 

"There is no reason . . . he could not smoke a doobie just off the work premises, toss aside the roach and start right in on repairing a mill saw," Columbia's lawyers argued in a court filing. 

But unlike the arbitrator's ruling in Thomas' case, a Multnomah County judge ruled that Columbia Forest Products didn't have to make accommodations for a worker who showed up with marijuana "in one's system." 

"Those are two diametrically opposed opinions," said Corbett Gordon, an employment law attorney with Fisher & Phillips in Portland. "A lot of things are up in the air." 

A decision on Washburn's appeal is expected any time. Until a clear court ruling emerges on one or all of the cases, state health officials recommend employers meet with their attorneys to set site-specific policies regarding marijuana use. 

"It's really the businesses' discretion," said Grant Higginson, the state's public health officer. "But to have something in writing is really very important." 


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