EMPLOYERS GRAPPLE WITH MEDICAL MARIJUANA USE

Ethical, Liability Issues Rise As More States Make It Legal

On a typical weekday, stockbroker Irvin Rosenfeld has a marijuana
cigarette before work, then goes to his firm's smoking area for
another after he gets to the office. By day's end, he usually has
smoked more than a half-dozen joints -- and handled millions of
dollars' in clients' holdings.

There's nothing illegal about it. Rosenfeld, 54, of Fort Lauderdale,
has a condition that causes benign tumors in the long bones of his
body. After trying to control pain by taking narcotics such as
Dilaudid, he persuaded the U.S. government to put him in a test
program that gives marijuana to people with certain illnesses. His
pain is now manageable, he says.

"I've smoked 10 to 12 marijuana cigarettes a day for 25 years," says
Rosenfeld, adding he gets no euphoric effect from the drug. "All my
clients know I use it. Without it, I wouldn't be able to work." His
firm, Newbridge Securities, supports his use of marijuana and says it
hasn't hurt his performance.

In Florida, Rosenfeld is an exception to state law that bans
marijuana's use in any situation. But at a time when the use of
medical marijuana is expanding -- this month, New Mexico became the
12th state to allow it -- the issue is raising a range of ethical and
liability questions for employers across the nation.

Some companies, wary of marijuana's impact on employee performance,
continue to fire those who test positive for the drug, even when its
use is sanctioned by their state for medical purposes.

Those companies include Columbia Forest Products, a manufacturer of
hardwoods based in Oregon, one of the states that allows medical
marijuana. Even as the company maintains its zero-tolerance policy
toward drug use, it has faced legal action because its company rules
conflict with Oregon's medical marijuana law.

A few companies, such as Newbridge Securities, have embraced the
notion of employees using medical marijuana at work.

Meanwhile, there are questions about whether medical marijuana laws
would offer any protection to employers if a worker who used
marijuana to treat pain ended up injuring others or making a mistake
on the job. It's unclear whether such an incident has occurred.

"The rights of an employer to ensure productivity and safety around
machinery and on the job has to take precedence," says Mark Levitt, a
labor and employment lawyer in Tampa. "The use of marijuana has an
effect on employees' ability to perform. That's a big concern for employers."

Marijuana's effectiveness as a pain reliever is widely debated, and
the Food and Drug Administration has not approved it for medical use.
It's used by patients with a variety of ailments, including cancer,
glaucoma, AIDS or HIV, Crohn's disease, hepatitis C and multiple
sclerosis, says the Marijuana Policy Project, a Washington,
D.C.-based non-profit organization that supports easing restrictions
on the drug.

The FDA considers marijuana a controlled substance with a very high
potential for abuse and says that the drug has no accepted medical
use and that there is a lack of accepted safety data for use under
medical supervision. The American Medical Association doesn't support
marijuana's medical use but has urged further studies on its effectiveness.

Some doctors, however, see a treatment role for the drug.

Donald Abrams, chief of hematology and oncology at San Francisco
General Hospital, said in an e-mail: "As a cancer doctor, every day I
see patients with nausea from their chemotherapy, loss of appetite,
pain and depression. As I am a physician in California," which allows
medical marijuana, "I can advise these patients that they might
consider trying marijuana for relief of all of these symptoms."

Abrams says the key ingredient in marijuana, THC, is available in
pill form. But he says smoking marijuana is more effective because it
leads to a more potent concentration of the drug in a user's system.
He says it's unusual for patients to smoke as much as Rosenfeld, but
the drug supplied by the U.S. government has relatively low potency.

He also says marijuana smoking is associated with a lower risk of
developing lung cancer. Marijuana costs $35 to $75 for 1/8 of an
ounce, according to Americans for Safe Access (ASA), a non-profit
based in Oakland, that has pushed for greater acceptance of medical
marijuana. Still, most patients must pay for their own marijuana
because it usually is not covered by medical insurance.

An estimated 300,000 people in the USA use medical marijuana, based
on estimates from data on registered medical users from ASA.

As the number of states allowing its use increases, employers are
starting to grapple with how to deal with the issue. Few disputes
about medical marijuana's impact on the workplace have made it to
court, but many employers say they would have concerns if a worker
needed marijuana treatments.

Although Oregon is among the states allowing medical marijuana,
Hunter-Davisson, a mechanical contracting firm in Portland, maintains
a drug-free policy, conducts drug tests and says it would not allow
an employee to use the drug as a pain reliever.

"To let anyone work impaired is not anything you would want to be
responsible for," says Dave McCotter, safety manager at Hunter. "We
couldn't have them driving our trucks."

Even in New York and other states that do not allow medical
marijuana, companies are beginning to debate the issue.

Melek Pulatkonak, president and chief operating officer of Hakia, a
fledgling Internet search engine company in New York City, says that
"our concern would be: How does an employee (using medical marijuana)
really focus? We would have to be sure their mind is clear."

Pulatkonak says the company might consider flexible work hours to
accommodate an employee's marijuana use in such an instance.

None of the states with medical marijuana laws requires employers to
make accommodations for the use of the drug in the workplace, says
Bruce Mirken, spokesman for the Marijuana Policy Project.

Yet, there are legal gray areas for companies, say employment lawyers
such as Richard Meneghello of Portland, Ore., who does seminars for
companies on the topic.

He says many employers remain uncertain about whether they can fire
or deny employment to users of medical marijuana, or whether to
accommodate them by allowing use only at home or in an area at work
where they can smoke.

"It's almost an untenable situation. Employers are screaming for
answers," Meneghello says. "We know they're looking for clear
answers, and there's not one out there right now. There's a lot of
uncertainty. Employers are living in a dangerous situation."

Efforts to legalize the use of marijuana for medical reasons gained
momentum in the 1980s as the AIDS epidemic took hold, and
AIDS-related organizations pushed governments to allow the drug to be
used to alleviate symptoms such as loss of appetite.

In 1996, California passed a ballot initiative legalizing marijuana's
use for some medical reasons. Alaska, Colorado, Hawaii, Maine,
Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and
Washington state have adopted similar legislation.

Residents with state permits to grow or use medical marijuana
typically are given cards identifying them as participants in such
programs. New Mexico's law, which takes effect July 1, will let
residents use medical marijuana for ailments such as cancer and
HIV/AIDS. The marijuana would be provided by the state Health Department.

In 1978, the U.S. government began a trial distribution program to up
to 13 patients with various medical ailments. The program was closed
to new participants in 1992. Rosenfeld, an outspoken supporter of
using medical marijuana in the workplace, gets marijuana legally from
the federal government as one of five remaining participants in the program.

In some states with medical marijuana laws, the drug is available at
special dispensaries. Others use authorized caregivers to grow a
limited number of marijuana plants. Some patients have obtained their
marijuana on the black market, according to the Marijuana Policy Project.

Federal law continues to ban marijuana use for any reason. It's rare
that medical marijuana users are prosecuted, but those licensed by
states to grow or use marijuana for medical purposes still can be
arrested by federal officials, a conflict in the law that has led to
legal wrangling and confusion.

Patients usually aren't drawn into the fray, but a three-judge panel
of the U.S. Court of Appeals in California ruled in March that Angel
Raich, who uses marijuana with a doctor's approval because of a
terminal brain tumor and ailments, isn't immune from federal
prosecution. She sued the U.S. government pre-emptively to try to
eliminate concerns of being arrested.

Rosenfeld's employer, Newbridge Securities, is resolute in its
support of his on-the-job use of medical marijuana. Company officials
say they aren't concerned about legal liability issues because they
say Rosenfeld's use of the drug doesn't have an impact on his ability
to work. He also discloses to every client that he uses the drug.

"He's a quality stockbroker, and he does a great job," says Phillip
Semenick, executive vice president and branch manager. "But there is
a stigma to it. Some people are going to look at it and say, 'Here's
a guy smoking pot at work? How can he do that?' "

Rosenfeld's marijuana use also has led to moments that Semenick and
Rosenfeld have found comical. Marijuana "has a distinct smell,"
Semenick says. "The mailman or someone coming into the building will
stop and notice." He adds that the company is not concerned about how
the smell of marijuana in its office might affect its image.

Rosenfeld says he has been pulled over by state police when he was
carrying marijuana, but showed officers his federal paperwork to
explain his situation.

Other employers haven't been as flexible when workers have used
medical marijuana.

In 2001, Columbia Forest Products fired millwright Robert Washburn
after he repeatedly failed urine tests for drug use. He was enrolled
in a state medical marijuana program to try to manage his leg spasms.
"He was never impaired at work," says Philip Lebenbaum in Portland,
who was Washburn's attorney when he sued the company over the firing.

But the company argued that Washburn's use of medical marijuana
violated its drug policy, even though Washburn had not used the drug
on the job. Oregon's Supreme Court ruled last year that Columbia did
not have to accommodate Washburn's off-duty marijuana use because he
was not disabled.

Scott Seidman, a Portland lawyer who represented Columbia, says the
company had to maintain its drug-free workplace policy because it is
a federal contractor. "They felt obligated also for safety reasons,"
Seidman says.

Like Rosenfeld, other users of medical marijuana have found support
from their employers.

Joseph Kintzel, 41, of Golden, Colo., is a respiratory therapist who
evaluates and treats patients. He has his own business but also works
for medical organizations that are aware of his use of medicinal
marijuana for back problems.

Kintzel says he had four back surgeries for 10 herniated discs in
1996 and 1997, and has 32 pieces of titanium holding his spine
together. He still has painful muscle spasms. Kintzel says that in
2000, after trying painkillers such as morphine, Percocet and Vicodin
and being out of work for two years, he used marijuana bought on the
black market. He says it was a more effective pain reliever.

In 2002, after getting a doctor's authorization, he began using
marijuana regularly. Within six weeks, Kintzel says, he was off the
narcotics and began riding a bike. A few months later, he was back at
work. He says he gets no euphoric effect from marijuana.

A state-authorized caregiver now provides him with the drug. Like
other registered medical marijuana users in Colorado and elsewhere,
Kintzel carries a card that identifies him as an authorized user.
Insurance doesn't cover his marijuana costs, Kintzel says, so he buys
about an ounce at a time, which lasts for 10 days. An ounce costs $200 to $250.

Kintzel, a married father of two boys, says the use of medical
marijuana has helped, not impaired, his ability to work. "I work 60
to 65 hours a week," he says. "I've had one sick day in the last four years."