ACCOMMODATING LEGAL POT

The Courts Add Weight to Medical Marijuana Laws While Workplace
Practices Struggle to Find Their Balance

Advocates of medical marijuana have every reason to be pleased with
this week's ruling by the 9th U.S. Circuit Court of Appeals, which
held that the federal controlled substances act doesn't trump state
laws allowing medicinal use of pot.

If you're looking for guidance in the workplace, though, the news
isn't so good, as The Oregonian's Brent Hunsberger reported in
Thursday editions.

The decision by a three-judge panel of the 9th Circuit is the second
major victory for the medical marijuana folks, the first being last
summer's decision by the U.S. Supreme Court not to hear appeals of a
ruling about physicians' licenses. In that case, a lower court
rejected the Justice Department's claim that the Controlled Substances
Act empowered the feds to revoke the licenses of doctors who
prescribed marijuana.

Given those decisions, the question of whether the states could enact
medical marijuana laws if they want is beginning to seem settled. The
courts are putting together a record of not allowing the feds to interfere.

But the tougher question has always been whether the states should
enact such laws. And a look into the swamp of employment practices and
regulations offers a different and far more cautionary picture.

As Hunsberger's story said, Freightliner is appealing an arbitrator's
order to reinstate an employee it fired after he failed a drug test
given after a forklift mishap. The test found marijuana in the
employee's system, but the employee had a prescription for it. The
company didn't argue that the marijuana impaired the employee, only
that it was found in his system.

The arbitrator made the right decision, in our view, because it's hard
to see a link between the marijuana and the accident. But the company
has a couple of solid points on its side, too.

First, by not firing someone who tests positive for marijuana, the
company risks important business with the federal government if the
feds decide to make an issue of employee drug use.

Second, the state law voters approved in 1998 says businesses do not
have to make any special provisions for people who are medical users
of marijuana. It's hard to know what exactly that means, though.

Plenty of prescription drugs mix poorly with the workplace, and
companies ought to be within their rights to require employees not to
work while impaired. Often, employees and employers work these things
out informally, but, frankly, it's hard to see many medical marijuana
users discussing it with their employers, considering the repute in
which most employers hold marijuana.

As bad is it is, though, medical marijuana is the law in Oregon, and
it must be accommodated. Employers should have the right to protect
their employees and the public by insisting that employees be
unimpaired by drugs -- prescribed or not -- at work.

Employees, though, should be able to count on prescription marijuana
being treated the same as other prescriptions. They should also be
given the opportunity to argue that testing positive for prescribed
marijuana is not necessarily the same thing as being impaired by it.