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."


Pubdate: Thu, 18 Dec 2003
Source: Oregonian, The (Portland, OR)
Webpage:
http://www.oregonlive.com/search/ind...52243221280.xm
l?oregonian?fpfp
Copyright: 2003 The Oregonian
Contact: letters@news.oregonian.com
Website: http://www.oregonlive.com/oregonian/