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From the Editor

Several recent court cases have reinvented the question of "Who's on First?" but no one seems to be laughing with this version.

In one particular case, Portland truck manufacturer Freightliner fired forklift driver John Thomas after he broke an overhead water line and then tested positive for marijuana use. It seems an open and shut case, except when you realize that this occurred in Oregon and Thomas has a state-issued medical

marijuana registration card. This and other similar cases are uncharted waters and have pit organizations and laws against one another, leaving a hazy uncertainty for all players involved.

The following are just three of the contradictory situations that have arisen from court cases involving the firing of card-carrying employees.

Problem #1
The federal Controlled Substances Act (CSA) is a consolidation of numerous laws regulating the manufacture and distribution of controlled substances. Despite research that suggests marijuana may have a positive effect on glaucoma, seizures, pain management, nausea and other conditions, the CSA lists marijuana as a Schedule I Drug, considered to have high potential for abuse and with no recognized medical use. Aside from lethargy and short-term memory loss, other negative effects in some users may include impaired motor and cognitive functions.

In the U.S., marijuana is illegal for any reason at the federal level; however, thirty-three states and the District of Columbia have legislation on the books that allows for medical exemptions to state marijuana laws, and thirteen of these states allow prescriptions for medicinal use of marijuana.

In mid-December, the federal appeals court for the Thomas case ruled that the federal CSA does not trump state laws that allow medical marijuana use.

Problem #2
Oregon's Medical Marijuana Act allows firings, saying that employers don't have to accommodate the medical use of marijuana "in any workplace."

On the reverse side, the state's disabilities act provides protection to these employees. Also, the Bureau of Labor and Industries has issued a policy saying employers might have to make accommodations for cardholders who have qualified disabilities under the state disabilities act.

A similar case that is pending before the Oregon Court of Appeals may clarify how far the state disabilities act goes.

Problem #3
Employers have a lot at stake with this quagmire of legal debates. For instance, the federal Drug-Free Workplace Act requires federal contractors to have policies prohibiting the use of illegal drugs (remember: legal at the state level does not mean legal at the federal level).

Also, in the Freightliner case, the union got into the action, alleging the firing of Thomas — who not only held a medical marijuana registration card, but also a Teamster card — violated its collective bargaining agreement.

The implications that are raised by these court cases will not only affect the state of Oregon, but will subsequently be raised in other states as well. There is an obvious necessity to find a just answer to all of these legal contradictions, but until some clear decisions emerge, employers in the thirteen states that allow medicinal use of marijuana have been urged to meet with their attorneys to set site-specific policies regarding medicinal marijuana use.






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