MARIJUANA CASE RULING OVERTURNED

A Federal Judge Says Freightliner Acted Legally in Firing a Worker
Who's Registered to Use the Drug, Upsetting an Arbitrator's Decision

Unionized workers who want to use marijuana to treat pain without running
afoul of their employers may have a harder time under a federal judge's new
ruling.

In a decision issued late last week, U.S. District Judge Michael
Mosman overruled a labor arbitrator and found that Portland truck
maker Freightliner LLC acted legally in firing forklift operator John
Thomas, one of more than 6,000 Oregonians with state-issued
registration cards allowing them to smoke marijuana for chronic pain.

Freightliner fired Thomas in December 2002 after he ruptured an
overhead water line with his forklift at a Portland warehouse and
failed a subsequent drug test.

Mosman said arbitrator Carlton Snow, a Willamette University law
professor, "dispensed his own brand of industrial justice" by looking
outside the company's labor agreement to find Freightliner in
violation of the Oregon Medical Marijuana Act.

Snow had ordered Freightliner to reinstate Thomas, saying the act
prevented employers from disciplining workers who use a valid medical
marijuana prescription, smoke on their own time and report to work
unimpaired.

The state law, approved by voters in 1998, allows registered patients
to grow and use marijuana for medical purposes.

Employment attorneys said Mosman's decision offers some guidance for
employers enforcing labor contracts with prohibitions against drug use
at work.

But they say the ruling skirted two larger questions affecting
non-union workplaces as well: Do employers have to accommodate a
worker who uses medical marijuana off the job?

"By leaving that out, (the ruling) doesn't really answer the
question," said Stacey E. Mark, an employment attorney with AterWynne
in Portland. "We just don't know."

Two other cases in state and federal courts should clarify the
question, at least temporarily, attorneys say.

In one case, pending before the Oregon Court of Appeals for more than
a year, millwright Robert Washburn claims Columbia Forest Products
Inc. violated the state Disabilities Act when the company fired him in
2001 from its Klamath Falls mill. A Multnomah County judge ruled
against Washburn last year, saying state law doesn't require a company
to make accommodations for workers with marijuana in their system.

Thomas also filed a separate suit in federal court, claiming
Freightliner violated the state disabilities act.

Rulings in either case could clarify a confusing area of workplace law
for scores of employers.

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

Paul Hayes, Teamsters Union attorney, declined comment on the most
recent decision. A Freightliner spokesman, Chris Brandt, said the
company believes Mosman made the correct decision.

Thomas, 41, said he supports an appeal. He said he remains unemployed
and continues to use marijuana at night to control pain from multiple
injuries to his knees and neck over the years.