The following article was published in the newspaper.  Below is my response which was also published.

MEDICAL POT LAW NEEDS A FIX

Oregon’s medical marijuana law needs to be clarified in view of the
latest court decision. The Supreme Court may do so eventually, but it
would be better – more democratic – for the legislature to perform that
chore.

In early 2005 the state Supreme Court ruled against a worker who had
been fired from a forest-products plant because he used medical
marijuana.

In a different case, however, the Bureau of Labor and Industries ruled
in favor of a worker, a drill press operator, who had been hired as a
temporary and who was let go in 2003 when he disclosed his medical
marijuana use. The labor bureau ruled that his employer had to make a
reasonable accommodation of his disability, which was that he was
smoking pot off the job to relieve his nausea and stomach cramps.

Last week the court of appeals turned down an appeal by the employer,
Emerald Steel Fabricators Inc. in Eugene, from the BOLI decision. The
court upheld BOLI, saying the company had not followed the correct
procedure in bringing up its main points.

This man had been hired for a temporary job, and the company’s practice
was to require a drug test before offering to keep someone on long
term. After doing the job for a while, the employee disclosed that he
had a medical marijuana card and wondered whether this would affect his
chance of being kept on. His supervisor took the case to the owner,
and shortly afterward the man was told he would no longer be needed.

There are two sides here, as anyone can see, and they conflict.

One side is that free citizens should have a right to keep their
private life private, not just from the government but from their
employers as well. As long as they show up on time and handle the job
satisfactorily, what they do on their own time is nobody else’s
business. To accept something less is to grant that employers can also
check up on whether you smoke tobacco at home, whether you have a drink
now and then, and ultimately how dangerous your habits and hobbies are
to your health, because this might affect the company’s benefit costs.

The other side is that employers do have a legitimate interest in
making sure their workers – especially drill press operators working
around heavy machinery – are not impaired by the lingering effects of
substances that may dull their senses. Otherwise the company runs the
risk of people getting injured or even killed, and of the company then
being sued, not to mention cited for safety violations.

The legislature could clear all that up. To protect employers, it
could declare that medical marijuana is not protected as a disability.
And to protect our privacy rights, it could say that employers can
require drug tests, but not routinely, only for cause.

Response from SG:

Having 14 years experience professionally consulting government and private businesses with the ADA I thought I should make a quick response. I have experience as an expert witness in Federal cases and the DOJ:

ADA 101

First, the state cannot change the intent nor the written federal laws and regulations of the Americans with Disabilities Act (ADA).  That is, the State must at least meet the federal requirements, and may exceed these with their own, but cannot lessen the Act.

Most people think of ADA as Parking and Ramps.  Although these items are an important factor there is much more to the Act besides physical barriers.  It is also about policies, procedures, and attitudes.

The ADA is a Civil Rights issue, not one of medications, treatments or drugs.  The ADA simply states that persons with disabilities shall have equal access to Programs, Services and Activities otherwise offered to any other member of the public.  To single out any type of treatment or disability is directly against the ADA.  This is what the court stated and is in fact in line with Federal regulations which the state must adhere to. Violations come with stiff penalties and loss of federal funding.

To single out a type of treatment then singles out many disabilities as allowed by the MMJ program. Who would this affect (what type of disability are you singling out)?  This is the same as putting MMJ program participants on the back of the bus (segregation). This type of thinking is exactly what the ADA is trying to abolish. Your first concern should be for the view you have on persons with disabilities.  From my experience in assisting with compliance and training, I have found that attitudinal barriers are by far the biggest hurdle.

Violation of a Civil Right is not the answer and the Legislature cannot change this.

The real answer to this issue is to re-schedule medical marijuana so that a Doctor can properly prescribe it.  This would then allow for the control and supply of MMJ rather than dealing in these grey areas.

As for the employer, the current Marijuana testing methods need to be reviewed. Current testing can show traces of the drug for up to 6 months after exposure.  The effect of the drug only lasts for 1 to 4 hours depending on strength and dosage.  In short there is no current test used generally by private employers that can detect if a person is “Under The Influence” of marijuana. This should be a primary concern that is addressed by private business sector and most certainly those big testing companies that make all the money from them (but have little interest in this area of development).

Perhaps the private sector can adopt what our military has learned about the value of “Impairment Testing” over a simple chemical analysis of the last 6 months of life.

Mike Mullins (Formerly CIO Disability Access Consultants, Inc.)

What is a PRGS? (Person Responsible for the Grow Site)

I am only a PRGS.  I am not a Patient.  I have few rights because the intent of the original law was to have a personal relationship with my patient (usually a close friend or loved one). The issue is that there are more patients than PRGs. This has given birth to new issues, many which are addressed by the dispensary initiative.

This has been a longstanding problem from my point of view.  I have many stories to tell.  Fortunately as of January 1, 2008 the amended rules went into affect to assist in proper notifications to the PRGS.  Unfortunately there are a few who may be able to skirt the new rules for a short period while they are going into effect. This will catch up shortly.

New rules call for returning of cards within a 7 day period when a patient changes care givers or PRGS’s.  There is notification from DHS sent to the PRGS to return the card thus giving official notification of any changes.  As well the PRGS should initially get the card direct, instead of from the patient.

This goes a long way but does not solve all of the issues.

Previously a patient could change PRGS by simply faxing in a change on the form.  This allowed some problems:

A patent could change PRGS without the PRGS knowledge.  This puts the PRGS out of compliance and at risk for arrest.  I have had some patients attempt to “Double Dip” by having one PRGS sign up, then changing to a new PRGS without notifying the first PRGS.  The new rules will close this loop.

Another issue is that the PRGS cannot officially remove a patient from the garden.  In cases where a PGRS may grow for more than one individual, there may be times where a patient may need to be removed.  Some of these situations may be due to intrusive or destructive actions, breakdowns in relationships, or inappropriate behavior such as suspicion of illegal activities.  In such cases the PRGS cannot remove their name from the patients’ records without the patients’ permission.  I have dealt with these types of situations and even taken a notarized copy of my own statement to DHS (although I do not know if it did any good, other than cover my ass if I had to). I came extremely close to having to when the patient was busted cheating.

I have had patients show up at my door with guns, had my phone lines cut and masked men barge in, chainsaws to the side of buildings, and much more.  When doing a grow one must remember that the grow is as valuable as the Bank Vault and there will be attempts if the grow is not secured or well removed and unknown. Even then there is a risk. It is difficult to keep the grow secretive from the patient, although in some cases this may be preferred by the PRGS. It is from this experience that we use grower/patient contracts with new patients.

I recommend only working with folks you know well and are intimate with if you do not use a contract.  This is not a good attitude I admit, but it does afford me the desired level of protection, risk and hassle.  In order to encourage me to grow for others, I would want something in place to make things perfectly clear.  I once had a patient that was a Doctor.  He took me to a warehouse he rented to store all the Kilos I was going to grow for him. Our relationship ended there as he had expectations that were unreal (and illegal).

Previously there have been no provisions for the rights of a PRGS, and this is still the case.  Considering that the PRGS bears all of the risks, costs and background checks, there needs to be a more clear process. Until that time the PRGS should take upon themselves to develop practices that can be developed into standards.  Perhaps one of these practices is to develop wording for a contract between the patient and PRGS.

There needs to be more PRGS available to patients.  I believe they are out there but are encumbered by the lack of a clear path.  Perhaps creating a standard contract would induce some of these fine gardeners to assist until we can get the process changed.

One of our other issues is the fact that we are limited to Federal numbers.  This prohibits good communal gardens as I had first pictured in my mind when OMMA was introduced. It is unfortunate that the State of Oregon will not defend our true needs against the federal bullies.  This is an area I think will have to be addressed at some point, even for a good dispensary initiative to eventually work in practice as opposed to theory.

It is too often I hear of Patients complaining about the PRG.  This usually stems from the Patient not having the knowledge of how to grow and expecting more than can be done, with the all American GIMME attitude that it is owed simply because someone shows compassion.  If patients were more involved in their own grow this would be less of a problem.  Most patients do not have (or are not able) the desire to be in the garden. Communal Grow Spaces were always in my mind for this solution.  WAMM has a great model, however this model does not work with our program, simply because of the Feds, and the States’ position not to stand up for our rights.

Thanks,

The Grower