Pubdate: Tue, 17 Apr 2007
Source: USA Today (US)
Page: B1, Front Page of the Money Section
Copyright: 2007 USA TODAY, a division of Gannett Co. Inc
Author: Stephanie Armour, USA TODAY
Cited: Marijuana Policy Project
Cited: Americans for Safe Access
Bookmark: (Marijuana - Medicinal)


Ethical, Liability Issues Rise As More States Make It Legal

On a typical weekday, stockbroker Irvin Rosenfeld has a marijuana 
cigarette before work, then goes to his firm's smoking area for 
another after he gets to the office. By day's end, he usually has 
smoked more than a half-dozen joints -- and handled millions of 
dollars' in clients' holdings.

There's nothing illegal about it. Rosenfeld, 54, of Fort Lauderdale, 
has a condition that causes benign tumors in the long bones of his 
body. After trying to control pain by taking narcotics such as 
Dilaudid, he persuaded the U.S. government to put him in a test 
program that gives marijuana to people with certain illnesses. His 
pain is now manageable, he says.

"I've smoked 10 to 12 marijuana cigarettes a day for 25 years," says 
Rosenfeld, adding he gets no euphoric effect from the drug. "All my 
clients know I use it. Without it, I wouldn't be able to work." His 
firm, Newbridge Securities, supports his use of marijuana and says it 
hasn't hurt his performance.

In Florida, Rosenfeld is an exception to state law that bans 
marijuana's use in any situation. But at a time when the use of 
medical marijuana is expanding -- this month, New Mexico became the 
12th state to allow it -- the issue is raising a range of ethical and 
liability questions for employers across the nation.

Some companies, wary of marijuana's impact on employee performance, 
continue to fire those who test positive for the drug, even when its 
use is sanctioned by their state for medical purposes.

Those companies include Columbia Forest Products, a manufacturer of 
hardwoods based in Oregon, one of the states that allows medical 
marijuana. Even as the company maintains its zero-tolerance policy 
toward drug use, it has faced legal action because its company rules 
conflict with Oregon's medical marijuana law.

A few companies, such as Newbridge Securities, have embraced the 
notion of employees using medical marijuana at work.

Meanwhile, there are questions about whether medical marijuana laws 
would offer any protection to employers if a worker who used 
marijuana to treat pain ended up injuring others or making a mistake 
on the job. It's unclear whether such an incident has occurred.

"The rights of an employer to ensure productivity and safety around 
machinery and on the job has to take precedence," says Mark Levitt, a 
labor and employment lawyer in Tampa. "The use of marijuana has an 
effect on employees' ability to perform. That's a big concern for employers."

Marijuana's effectiveness as a pain reliever is widely debated, and 
the Food and Drug Administration has not approved it for medical use. 
It's used by patients with a variety of ailments, including cancer, 
glaucoma, AIDS or HIV, Crohn's disease, hepatitis C and multiple 
sclerosis, says the Marijuana Policy Project, a Washington, 
D.C.-based non-profit organization that supports easing restrictions 
on the drug.

The FDA considers marijuana a controlled substance with a very high 
potential for abuse and says that the drug has no accepted medical 
use and that there is a lack of accepted safety data for use under 
medical supervision. The American Medical Association doesn't support 
marijuana's medical use but has urged further studies on its effectiveness.

Some doctors, however, see a treatment role for the drug.

Donald Abrams, chief of hematology and oncology at San Francisco 
General Hospital, said in an e-mail: "As a cancer doctor, every day I 
see patients with nausea from their chemotherapy, loss of appetite, 
pain and depression. As I am a physician in California," which allows 
medical marijuana, "I can advise these patients that they might 
consider trying marijuana for relief of all of these symptoms."

Abrams says the key ingredient in marijuana, THC, is available in 
pill form. But he says smoking marijuana is more effective because it 
leads to a more potent concentration of the drug in a user's system. 
He says it's unusual for patients to smoke as much as Rosenfeld, but 
the drug supplied by the U.S. government has relatively low potency.

He also says marijuana smoking is associated with a lower risk of 
developing lung cancer. Marijuana costs $35 to $75 for 1/8 of an 
ounce, according to Americans for Safe Access (ASA), a non-profit 
based in Oakland, that has pushed for greater acceptance of medical 
marijuana. Still, most patients must pay for their own marijuana 
because it usually is not covered by medical insurance.

An estimated 300,000 people in the USA use medical marijuana, based 
on estimates from data on registered medical users from ASA.

As the number of states allowing its use increases, employers are 
starting to grapple with how to deal with the issue. Few disputes 
about medical marijuana's impact on the workplace have made it to 
court, but many employers say they would have concerns if a worker 
needed marijuana treatments.

Although Oregon is among the states allowing medical marijuana, 
Hunter-Davisson, a mechanical contracting firm in Portland, maintains 
a drug-free policy, conducts drug tests and says it would not allow 
an employee to use the drug as a pain reliever.

"To let anyone work impaired is not anything you would want to be 
responsible for," says Dave McCotter, safety manager at Hunter. "We 
couldn't have them driving our trucks."

Even in New York and other states that do not allow medical 
marijuana, companies are beginning to debate the issue.

Melek Pulatkonak, president and chief operating officer of Hakia, a 
fledgling Internet search engine company in New York City, says that 
"our concern would be: How does an employee (using medical marijuana) 
really focus? We would have to be sure their mind is clear."

Pulatkonak says the company might consider flexible work hours to 
accommodate an employee's marijuana use in such an instance.

None of the states with medical marijuana laws requires employers to 
make accommodations for the use of the drug in the workplace, says 
Bruce Mirken, spokesman for the Marijuana Policy Project.

Yet, there are legal gray areas for companies, say employment lawyers 
such as Richard Meneghello of Portland, Ore., who does seminars for 
companies on the topic.

He says many employers remain uncertain about whether they can fire 
or deny employment to users of medical marijuana, or whether to 
accommodate them by allowing use only at home or in an area at work 
where they can smoke.

"It's almost an untenable situation. Employers are screaming for 
answers," Meneghello says. "We know they're looking for clear 
answers, and there's not one out there right now. There's a lot of 
uncertainty. Employers are living in a dangerous situation."

Efforts to legalize the use of marijuana for medical reasons gained 
momentum in the 1980s as the AIDS epidemic took hold, and 
AIDS-related organizations pushed governments to allow the drug to be 
used to alleviate symptoms such as loss of appetite.

In 1996, California passed a ballot initiative legalizing marijuana's 
use for some medical reasons. Alaska, Colorado, Hawaii, Maine, 
Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and 
Washington state have adopted similar legislation.

Residents with state permits to grow or use medical marijuana 
typically are given cards identifying them as participants in such 
programs. New Mexico's law, which takes effect July 1, will let 
residents use medical marijuana for ailments such as cancer and 
HIV/AIDS. The marijuana would be provided by the state Health Department.

In 1978, the U.S. government began a trial distribution program to up 
to 13 patients with various medical ailments. The program was closed 
to new participants in 1992. Rosenfeld, an outspoken supporter of 
using medical marijuana in the workplace, gets marijuana legally from 
the federal government as one of five remaining participants in the program.

In some states with medical marijuana laws, the drug is available at 
special dispensaries. Others use authorized caregivers to grow a 
limited number of marijuana plants. Some patients have obtained their 
marijuana on the black market, according to the Marijuana Policy Project.

Federal law continues to ban marijuana use for any reason. It's rare 
that medical marijuana users are prosecuted, but those licensed by 
states to grow or use marijuana for medical purposes still can be 
arrested by federal officials, a conflict in the law that has led to 
legal wrangling and confusion.

Patients usually aren't drawn into the fray, but a three-judge panel 
of the U.S. Court of Appeals in California ruled in March that Angel 
Raich, who uses marijuana with a doctor's approval because of a 
terminal brain tumor and ailments, isn't immune from federal 
prosecution. She sued the U.S. government pre-emptively to try to 
eliminate concerns of being arrested.

Rosenfeld's employer, Newbridge Securities, is resolute in its 
support of his on-the-job use of medical marijuana. Company officials 
say they aren't concerned about legal liability issues because they 
say Rosenfeld's use of the drug doesn't have an impact on his ability 
to work. He also discloses to every client that he uses the drug.

"He's a quality stockbroker, and he does a great job," says Phillip 
Semenick, executive vice president and branch manager. "But there is 
a stigma to it. Some people are going to look at it and say, 'Here's 
a guy smoking pot at work? How can he do that?' "

Rosenfeld's marijuana use also has led to moments that Semenick and 
Rosenfeld have found comical. Marijuana "has a distinct smell," 
Semenick says. "The mailman or someone coming into the building will 
stop and notice." He adds that the company is not concerned about how 
the smell of marijuana in its office might affect its image.

Rosenfeld says he has been pulled over by state police when he was 
carrying marijuana, but showed officers his federal paperwork to 
explain his situation.

Other employers haven't been as flexible when workers have used 
medical marijuana.

In 2001, Columbia Forest Products fired millwright Robert Washburn 
after he repeatedly failed urine tests for drug use. He was enrolled 
in a state medical marijuana program to try to manage his leg spasms. 
"He was never impaired at work," says Philip Lebenbaum in Portland, 
who was Washburn's attorney when he sued the company over the firing.

But the company argued that Washburn's use of medical marijuana 
violated its drug policy, even though Washburn had not used the drug 
on the job. Oregon's Supreme Court ruled last year that Columbia did 
not have to accommodate Washburn's off-duty marijuana use because he 
was not disabled.

Scott Seidman, a Portland lawyer who represented Columbia, says the 
company had to maintain its drug-free workplace policy because it is 
a federal contractor. "They felt obligated also for safety reasons," 
Seidman says.

Like Rosenfeld, other users of medical marijuana have found support 
from their employers.

Joseph Kintzel, 41, of Golden, Colo., is a respiratory therapist who 
evaluates and treats patients. He has his own business but also works 
for medical organizations that are aware of his use of medicinal 
marijuana for back problems.

Kintzel says he had four back surgeries for 10 herniated discs in 
1996 and 1997, and has 32 pieces of titanium holding his spine 
together. He still has painful muscle spasms. Kintzel says that in 
2000, after trying painkillers such as morphine, Percocet and Vicodin 
and being out of work for two years, he used marijuana bought on the 
black market. He says it was a more effective pain reliever.

In 2002, after getting a doctor's authorization, he began using 
marijuana regularly. Within six weeks, Kintzel says, he was off the 
narcotics and began riding a bike. A few months later, he was back at 
work. He says he gets no euphoric effect from marijuana.

A state-authorized caregiver now provides him with the drug. Like 
other registered medical marijuana users in Colorado and elsewhere, 
Kintzel carries a card that identifies him as an authorized user. 
Insurance doesn't cover his marijuana costs, Kintzel says, so he buys 
about an ounce at a time, which lasts for 10 days. An ounce costs $200 to $250.

Kintzel, a married father of two boys, says the use of medical 
marijuana has helped, not impaired, his ability to work. "I work 60 
to 65 hours a week," he says. "I've had one sick day in the last four years."
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