THE MILLWORKER'S ARGUMENT

The Oregon Supreme Court has agreed to review Washburn v. Columbia
Forest Products, Inc., a case that will clarify how much protection
the Oregon Medical Marijuana Act (OMMA) affords workers.

Millworker Robert Washburn of Klamath Falls got a card through the
state program in 1999 after a doctor approved his marijuana use for
pain-related insomnia. Washburn never showed signs of impairment on
the job, but was fired in 2001 after his urine tested positive for
marijuana metabolites. Washburn sued for reinstatement and back pay.
A Multnomah County Circuit Court judge ruled against him, citing a
clause in OMMA releasing employers from any obligation to accommodate
"use of medical marijuana in any workplace."

Washburn appealed, arguing that he didn't use marijuana at the mill
("in" his workplace) but only at home, before going to bed. In
January of this year the Court of Appeals ruled for Washburn.
Columbia Forest Products then asked the state supreme court to review
the ruling.

They will hear arguments November 7.

"The bottom-line question should be impairment," says Rick Bayer,
M.D. a Lake Oswego internist who was chief petitioner for the OMMA in
'98 and has worked ever since for its implementation. The prospect of
Washburn prevailing, says Bayer, inspired an employers' consortium to
try to undermine OMMA by a bill, HB2693, confirming their "right" to
fire workers who use marijuana whether on or off the job. It passed
the Republican-controlled House, then failed in a Democrat-controlled
Senate committee. "This may be a temporary reprieve," says Bayer, who
expects the employers to reintroduce the measure.

What follows is Bayer's July 10 testimony opposing HB2693:

Registration in the Oregon Medical Marijuana Program should never be
sole cause for termination of employment. Nor should inactive
metabolites in the body for a registered patient be sole cause for
termination. An important part of the law is "marijuana should be
treated like other medicines." This means Oregonians voted to make
medical marijuana treated like medical morphine, medical synthetic
THC, or Food and Drug Administration-approved medicines.

The psychoactive effects of both synthetic THC (Marinol) and herbal
marijuana are due primarily to THC. The timing issues about how a
drug behaves in the body are called pharmacokinetics and are mostly
dependent on the method of administering the drug. For example, an
inhaled medicine typically works faster but the effects usually do
not last as long as a medicine taken by mouth that must be absorbed
by the digestive tract.

Inhaling cannabis through smoking or vaporizing cannabis bypasses the
digestive tract.

In A Primer of Drug Action, pharmacologist Robert Julian, MD, PhD,
states, "absorption of inhaled drugs is rapid and complete.

The onset of behavioral effects of THC in smoked marijuana occurs
almost immediately after smoking begins and corresponds with the
rapid attainment of peak concentrations in plasma.

Unless more is smoked, the effects seldom last longer than 3 to 4 hours."

In the Journal of Cannabis Therapeutics, Franjo Grotenhermen, MD
wrote "Pulmonary [lung] assimilation of inhaled THC causes a maximum
plasma concentration within minutes, while psychotropic effects [the
"high"] start within seconds to a few minutes, reach a maximum after
15 to 30 minutes, and taper off within 2 or 3 hours." ... In summary,
this peer-reviewed scientific article informs us that the impairment
resolves when plasma THC levels return to low-levels at 3 hours and
baseline around 4 hours after smoking marijuana.

Since THC acts identically whether synthetic or herbal, we should
look at the warnings section of the US Food and Drug Administration
(FDA)-approved Marinol (synthetic THC): "WARNINGS: Patients receiving
treatment with Marinol should be specifically warned not to drive,
operate machinery, or engage in any hazardous activity until it is
established that they are able to tolerate the drug and perform such
task safely." This is sound advice.

In the above studies, impairment from smoked cannabis or marijuana
resolves within four hours.

Since synthetic THC and herbal THC are identical once inside the
body, there is no scientific rationale for discrimination against
those who prefer medical THC from an herbal rather than a synthetic source.

The Marinol package insert warnings should be heeded regardless of
whether a person uses synthetic FDA-approved THC (as in Marinol) or
herbal THC (as in marijuana or cannabis).

When a clinician monitors drug therapy, s/he educates a patient
through a careful explanation of the procedure (method of use and
expected results), alternative therapies, and risks involved in using
or not using the medicine.

There are many medicines - prescription or nonprescription - that
cause drowsiness or impairment. These include medicine for blood
pressure, diabetes, arthritis, respiratory infection, allergies, mood
stabilization, and pain. Physicians and patients use good
communication to lessen risks of adverse drug reactions.

It is important to avoid impairment when driving, operating
machinery, or engaging in any hazardous activity whether in the
workplace or not. Monitoring by family, friends, peers, and
co-workers for anyone's impairment can improve safety.

One reason that direct observation of impairment is important is that
impairment can be caused by health problems not related to
prescription medicines. Things like non-prescription over-the-counter
medicines, acute influenza, or a family emergency resulting in lost
sleep can cause impairment. This means good communication between
employees and employer can lessen risk of impairment at work.

Urine drug testing to monitor therapy is not routinely used in
clinical medicine.

It is helpful in toxicology or poisoning cases when a doctor is
uncertain what drugs are in the body. Urine tests are also used in
medical-legal settings.

The standard urine test for "marijuana" does not test for the "parent
drug" THC, but tests for an inactive non-psychoactive "metabolite" or
breakdown product of THC. Inactive breakdown products in a standard
"urine marijuana test" can remain positive for weeks to months after
consuming cannabis even when there is no impairment. The US
Department of Transportation commented about urine drug testing
stating that, "while a positive urine test is solid proof of drug use
within the last few days, it cannot be used by itself to prove
behavioral impairment during a focal event." In other words, urine
drug testing does not prove impairment - it only proves recent use.

Between 1976 and 1991, there were at least four flight-simulator
studies published according to a Library of Medicine search.

One showed impairment for at least 2 hours that resolved by 4 to 6
hours. Three others by a different research team showed conflicting
results. Two of those three show some impairment at 24 hours while
one of the three studies showed abnormal flight simulator results
only at 4 hours but none at 8 or 24 hours.

Another unpublished study by the same group failed to find impairment
bringing the total studies to five. These mixed results create confusion.

Since blood levels of THC are near baseline 4 hours after smoking
cannabis and impairment beyond 4 hours cannot be consistently
demonstrated, the researchers actually call this flight simulator
result a "hangover effect" rather than intoxication. According to Dr.
Leirer, the purported hangover effect is "very marginal" and is only
detected in tests of "very complex human/machine performance".
Comparable, subtle effects are reported at very low blood alcohol
levels of 0.025%, which is even under the .04% level allowed in
commercial motor vehicle drivers.

Possibly because of confusion surrounding flight simulator data,
other researchers study actual motor vehicle accidents.

In 2002, authors Gregory Chesher and Marie Longo concluded, "At the
present time, the evidence to suggest an involvement of cannabis in
road crashes is scientifically unproven." However as they note, some
of this may be because of evolving science.

As mentioned above, testing for inactive urine metabolites does not
test for impairment. Recent studies continue to show that "no
increased risk for road trauma was found for drivers exposed to cannabis."

But there is also an effort to base impairment on measuring the
"parent drug" responsible for impairment, namely THC. Dr. Olaf
Drummer, measured THC levels in fatal crashes in Australia and
noticed an association between high THC levels and risk of traffic
fatality even in the absence of other drugs.

Based on forensic evidence he determines whether a driver is
"culpable" or responsible for the fatal accident and correlates it to
blood THC levels.

Drummer and colleagues conclude, "Recent use of cannabis may increase
crash risk, whereas past use of cannabis does not." Dr. Franjo
Grotenhermen's review of Dr. Drummer's work adds, "While drivers with
low concentrations [of THC] in their blood had a lower probability of
causing a traffic accident than drug free drivers, higher THC
concentrations were associated with a considerably higher culpability ratio."

It remains unclear how to define the gray area about what is "recent"
and what is "past" use of cannabis even if one supports using parent
drug blood THC levels as a marker for impairment. This is because the
THC level below which there is no impairment, varies dramatically
among individuals. Plus, the actual numbers of persons who have only
THC in the blood and are involved in accidents is low and studies
still lack adequate statistical significance to draw scientifically
firm conclusions. Those concerned about legislation suggest that
since no culpability appears to exist below blood levels of 10
nanograms per milliliter (ng/ml), that any proposed cutoffs be above
10 ng/ml of THC. A study using coordination testing showed inevitable
failure on field sobriety testing if blood THC levels were 25-30
ng/ml but many failed testing at 90 and 150 minutes after smoking
even though plasma concentrations were rather low.

The researchers had the foresight to conclude that "establishing a
clear relation between THC plasma concentrations and clinical
impairment will be much more difficult than for alcohol." This is
primarily because alcohol and THC are chemically different and are
metabolized differently inside the body. With passage of medical
marijuana laws, we need additional research to show if there is a
correlation between clinical impairment and blood THC levels.

Daily cannabis users (like patients) can have levels as high as 6 to
10 ng/ml without clinical impairment even after 24 or more hours of
abstinence. While the science evolves, most experts think it remains
premature to make firm conclusions about the proper cutoff levels
using blood THC for "Driving Under the Influence" suspicion.

Proper clinical discussion of medical marijuana therapy and necessary
clinical observation for impairment remain the primary methods of
monitoring for possible adverse reactions at this time.

In summary, there is no consistent scientific evidence showing any
impairment beyond four hours from smoking marijuana and no scientific
evidence of any increased risk of motor vehicle accidents beyond four
hours after smoking marijuana.

As a medical cannabis expert, I do not condone any medical marijuana
use of cannabis at work. But, private employer-employee agreements to
abstain within 4 or 8 hours prior to work seem a reasonable type of
compromise. This still preserves safety, and would be consistent with
medical treatment plans using other medicines that may impair.

Registration in the Oregon Medical Marijuana Program should never be
sole cause for termination of employment. Medical use of marijuana
within Oregon law should be treated like medical Marinol, medical
morphine, and other medications both in and out of the workplace.

It is discriminatory to fire an unimpaired worker whose only cause
for firing is registration with the Oregon Department of Human
Services Oregon Medical Marijuana Program.