OREGON'S TOP COURT WILL HEAR POT CASE

At Issue Is Whether Workers Can Be Fired For Using It Medicinally

Oregon's Supreme Court on Monday took on a case that could decide
whether employers can fire workers who use marijuana at home for
medical purposes.

Robert Washburn, a former mill worker at Columbia Forest Products,
suffers from muscle spasms that disrupt his sleep. Washburn, one of
10,000 Oregonians enrolled in the state's medical-marijuana program,
began using the drug in 1999 after trying prescription medication.

Smoking marijuana before sleeping works better, he said.

The court is deciding whether Columbia Forest Products failed to
reasonably accommodate Washburn's disability when it fired him in
2001. The termination came after Washburn couldn't produce a urine
sample showing that he hadn't used marijuana in two or three weeks.

Washburn sued the company and won on appeal.

On Monday, justices focused on questions including: Is an employer
required to accommodate a disabled person by allowing marijuana, even
if painkillers -- or other remedies that don't violate a workplace
drug policy -- can be used?

Oregon's disability law "says employers are required to give
reasonable accommodation, not the accommodation of" an employee's
choice, argued Scott Seidman, who represented Columbia Forest Products.

Philip Lebenbaum, Washburn's attorney, said he thought that "an
Oregonian has the right to choose his own medication."

Columbia Forest Products doesn't allow workers to show up for work
with a controlled substance in their system.

One reasonable accommodation, Lebenbaum argued, would be for the
company to change its drug policy. It uses testing that measures
marijuana use, but not whether the user is impaired.

Other than reasonable accommodation, questions from justices focused
on the definition of disability itself: Are disabled people who can
remedy their conditions, such as a nearsighted person with glasses,
actually disabled?

Under the Americans with Disabilities Act, the answer is no. The
issue is unclear under Oregon's law.

"That's a pretty important question for Oregon employers to know,"
Seidman said; it could affect who is protected under the state's
disability law.

Justice Paul De Muniz asked Seidman whether it was true that Columbia
Forest Products would win the case if Washburn were not disabled.

Correct, Seidman said.

Millions of people suffer from sleep problems, De Muniz said. Did
that really substantially limit them in major life activities?

Only a few questions, mostly from Justice Rives Kistler, were
directed toward federal laws prohibiting marijuana possession and
whether those trumped Oregon's laws allowing the drug's use for
medical purposes.

Lebenbaum was pleased that the issue of the drug's legality didn't
surface much.

"If an employee is engaged in illegal use of drugs, an employer can
do whatever they want to them," Lebenbaum said.

"If I lose that issue, I'm out."

A ruling is expected in 2006.

For now, Oregon's Bureau of Labor and Industries acts as if allowing
medical-marijuana use is a reasonable accommodation for an employer to make.

In September, BOLI ordered Emerald Steel Fabricators of Eugene to pay
$28,000 to Anthony Scevers for back pay and emotional distress.
Scevers, who operated a drill press, was a temporary worker. He was
not given the permanent job he expected after he revealed his use of
medical marijuana, said Marcia Ohlemiller, the bureau's legal-policy adviser.

Emerald Steel did not ask Scevers how marijuana affected him, did not
ask his doctor how job performance would be affected and did not ask
whether there were other medications he could use, Ohlemiller said.

"That sort of thing is required for reasonable accommodation," she said.

The case now is on appeal.

In June, a bill that would have exempted employers from making
accommodations for medical marijuana, regardless of where it were
used, passed the Oregon House of Representatives 39-20. The bill died
in a Senate committee in August.