MEDICAL MARIJUANA LAW POSES QUESTIONS

* Employers In Oregon Are Searching For A Way To Comply With Federal
Drug-Free Requirements While Allowing Medicinal Use Of Marijuana

Oregon's new medical marijuana law has removed criminal penalties for using
the drug to ease the discomfort caused by some diseases.

But federal law still regards marijuana as a dangerous and illegal drug.

This disagreement could jeopardize the jobs of some Oregonians who use
medicinal marijuana. And it raises questions for employers who must enforce
federally imposed anti-drug programs.

The difference between the state and federal marijuana laws has created a
mess for employers, says Paula A. Barran, a Portland attorney who
specializes in labor law. Barran's firm, Barran Liebman, is one of the
state's largest labor specialty firms.

Employers can refuse to accommodate medical use of marijuana at work under
Oregon's and most other states' medical marijuana laws, said Dave Fratello,
spokesman for Americans for Medical Rights, a national organization
supporting the use of medicinal marijuana.

But the law doesn't specifically address what to do if an employee tests
positive for marijuana use.

Barran says the medicinal marijuana law will have different effects on
three categories of businesses: the transportation industry; government
contractors who are required to maintain a drug-free workplace; and other
businesses, which aren't tied to federal anti-drug regulations but
nonetheless don't want their workers using drugs.

For transportation employees, the law is specific and inflexible, she said:
Commercial drivers who test positive for marijuana are pulled off the road.

Among those who could jeopardize their jobs, Barran says, are the 108,000
Oregonians who hold commercial driver's licenses. Under federal law, they
are subject to random tests for drug and alcohol use, as well as tests
after accidents or when a supervisor has a reasonable suspicion that an
employee is using drugs.

In addition, federal law requires random drug testing of people who hold
"safety-sensitive" jobs in aviation, rail transport, pipelines and the
commercial marine industry.

The requirements are the result of a 1991 federal law, passed after a train
wreck in Maryland killed 17 people and injured 170. Investigators found the
crew of one train had been smoking marijuana before the wreck.

Oregon's new law, passed by voters in November, permits people with a wide
range of illnesses to use medicinal marijuana. The law applies not only to
people with terminal illnesses, but also to those who are well enough to go
to work - people undergoing chemotherapy who smoke marijuana to ward off
nausea, for example.

Testing protocol is big question

Tests for marijuana use can pick up traces of the drug for as long as a
month after use. So, Barran says, it's likely that some employees could
report to work with measureable traces of marijuana in their systems. And
even though they aren't impaired by the drug, just the traces of marijuana
violate federal law, she said.

Once they're pulled off the road, drivers and others covered by the law
can't go back to work until they have been reviewed by a substance abuse
worker and have complied with recommended rehabilitation - and have a clean
drug test.

Under the law, follow-up testing might be required to make sure the driver
has given up drugs.

Barran says Oregon law blurs the line between legal and illegal drugs,
creating hidden pitfalls.

"Nobody was focusing on this when the initiative was being debated," she
said. The measure "was promoted as a measure for people who are terminally
ill.

"But a lot of folks, who are going to be using medical marijuana will be
holding down jobs - people who use it for chemotherapy. People who have
multiple sclerosis are employed. It's not just allowable for late stages of
diseases where death is imminent."

Employers fear unknown

Judith L. Clark, president of H.R. Northwest, the largest independent human
resources consulting firm in the Northwest, says Oregon employers are
becoming increasingly worried about how the new law will affect them.

Employers, she said, are really waking up.

"I think that it probably is in the incubation stage right now," Clark said.

But after the state Health Division begins issuing registration cards in
May, she said, there will be much more interest.

Clark said she thinks the medicinal marijuana issue could cause dissension
in the workplace because of the moral implications surrounding the drug's use.

"There are a lot of folks who are opposed to medical marijuana on moral
grounds," she said. "I can't think of many other things an employer can do
that has the ability to generate as high an emotional response. It is more
likely that it will cause workplace dissension. There are some very strong
morality issues relative to this."

Labor-law changes confusing

The 113,000-member Society for Human Resources Management hasn't studied
the ramifications of the medicinal marijuana laws yet. But it's on the
radar screen.

Michael Losey, president of the international organization, said employment
law is changing so fast that "assumptions are being blown right out of the
water."

As late as the 1970s, he said, women who became pregnant were expected to
quit their jobs. But legislation changed all of that. So Losey isn't going
to make any sweeping predictions about the future of medicinal marijuana in
the workplace.

One concerned employer is the Port of Portland.

"We're in the question-asking phase," said Aaron Ellis, spokesman for the
Port of Portland. "What are the impacts with the state law and how would
they impact the federal drug-testing programs for the Coast Guard? We have
over 100 people who have a CDL (commercial drivers license) or are
certified under Coast Guard provisions. We're trying to figure out how
these people would be affected."

Ellis said the port is "thoroughly researching and analyzing all the ins
and outs of these questions . . . We'll create a policy that will be fair
to all employees."

Federal contractors can't choose

Peter Conte, spokesman for the Seattle-based Boeing Co., said the company
doesn't have any specific policies on the use of medicinal marijuana.
Washington voters also passed a medical marijuana initiative in November;
Boeing has 2,000 workers in Oregon and 99,000 in Washington.

"Clearly, where use could potentially impair the ability to perform a job
safely it would not be permitted," he said.

As a defense contractor, the aerospace corporation is required by the
federal government to maintain a drug-free workplace. Under that policy,
Boeing and many other companies with government contracts have an anti-drug
policy in place - and enforce it. Failure to do so could jeopardize the
company's contracts.

Conte says the company plans to walk a fine line between accommodating
medicinal marijuana and following federal law.

"Boeing would, on a case-by-case basis, evaluate use of drugs that could
impair a person's ability to perform a job," Conte said.

Insurers also at a loss

Cheryl Harmon, director of human resources administrative services for
Kaiser Permanente Northwest, said Kaiser officials discussed ramifications
of the new law last week.

"If an employee has a certificate and they're using marijuana for medical
reasons, we'd treat them like they were taking any other kind of
prescription medication," she said.

Likewise, if a job applicant tested positive for marijuana in
pre-employment drug screening, Kaiser probably would disregard the finding
if the applicant had a certificate, she said.

But Kaiser hasn't decided how to address the conflict between state and
federal law in its Drug-Free Workplace program.

"We're going to have to ask legal counsel about that," she said.

Checked-by: Richard Lake