COURT REFINES MARIJUANA LAW

An Oregon appeals court ruling says employers might have to make
accommodations for users of medical marijuana

A state appeals court ruled Wednesday that Oregon employers might have to
make reasonable accommodations for disabled workers with state permission
to use marijuana to treat pain.

But the ruling, handed down Wednesday by the Oregon Court of Appeals, left
it up to employers and lower courts to decide just how far employers must
go to accommodate qualified medical-marijuana users at work, employment
attorneys say.

The decision focused on a case brought by Robert Washburn, who alleges
Columbia Forest Products Inc. violated the Oregonians with Disabilities Law
by refusing to accommodate his use of marijuana for medical reasons.
Portland-based Columbia Forest Products fired Washburn, a millwright, in
2001 from its Klamath Falls mill after urine tests detected marijuana
residue in his system.

Washburn suffers from neck pain and muscle spasms that disrupt his sleep.
In 1999, he obtained a state-issued medical marijuana registration card,
giving him the right to treat chronic pain by smoking the drug. He says
smoking marijuana resolves his sleeping problem.

A Multnomah County Circuit Court judge had tossed out Washburn's lawsuit,
ruling that the state Medical Marijuana Act doesn't require a company to
make accommodations for workers with marijuana "in their system."

But the Court of Appeals ruling reinstated the lawsuit. The court found
that a positive drug test based on a urine sample does not prove that a
worker used or possessed marijuana at work.

It also found that the federal Drug-Free Workplace Act does not prohibit
workers in Oregon from using marijuana for medical purposes.

In a victory for employers, the court also ruled that Washburn's use of
medical marijuana does not automatically entitle him to accommodations.
Instead, the court said, an employer could argue that certain
accommodations might be unreasonable or create an "undue hardship."

The appeals court ordered the Multnomah County Circuit Court to decide
whether Washburn's accommodation request was reasonable. Washburn asked
Columbia Forest Products to use a blood test, rather than a urine test, to
determine whether he violated company policy forbidding drug use at work.

A blood test is considered a more accurate measure of whether marijuana
exists in the bloodstream, employment attorneys say.

The ruling is the first attempt to clear up a confusing area of law for
scores of employers.

The Oregon Medical Marijuana Act says employers don't have to accommodate
the "medical use of medical marijuana in any workplace." But Oregon Bureau
of Labor & Industries officials have said that under the state disabilities
act, employers might have to make reasonable accommodations for
medical-marijuana cardholders with qualified disabilities, including
changing their shifts so they don't show up to work impaired.

Legal experts and attorneys on both sides of the issue said Wednesday's
ruling likely will not be the last word on the matter.

Two attorneys representing employers said the decision will make it more
difficult for companies to prove a worker is impaired at work and a threat
to co-workers, customers or product integrity.

"I'm not happy from the point of view of the employer," said Corbett
Gordon, an attorney with Fisher Phillips in Portland who represents
employers. "It's going to be harder now for the employer to ensure a safe
workplace with safe products produced."

Attorneys representing employers say no legal standard exists for
determining when a worker influenced by marijuana poses a danger to others.
So regardless of what test is used, employers will have to make a
subjective judgment of impairment.

If the ruling stands, Gordon said, employers will have to decide how to
handle workers' state-approved medical-marijuana use on a case by case
basis. She said they will need to train managers to identify signs of
impairment, including odor or dilated pupils.

Philip Lebenbaum, an attorney who represented Washburn, called the decision
a victory for workers with disabilities who use marijuana to treat
aliments. More than 9,700 Oregonians possess medical marijuana cards,
according to an Oregon Health Division Web site, and at least 1,000 more
have applied and await state approval.

Lebenbaum said the ruling does not allow workers to show up unfit for work.

"It doesn't protect them if they're impaired at the work site," Lebenbaum said.

Gordon and Paula Barran, an attorney with Barran Liebman in Portland,
suggested that employers might lobby the Oregon Legislature to address the
matter. Barran said voters, in approving the state's medical marijuana law
in 1998, likely envisioned it helping severely disabled people who couldn't
work, not full-time workers.

Lynda Hartzell, an attorney from Tonkon Torp representing Columbia Forest
Products, said the company has not decided whether to appeal the ruling to
the Oregon Supreme Court.

Clifford Barry, executive vice president and chief financial officer of
Columbia Forest Products, said in a statement through Hartzell that the
company disagreed with the decision and believed "we acted in accordance
with the law when we terminated Mr. Washburn."