CertainTeed

[February 15th, 2006] When medical marijuana user Robert Tompkins fractured his finger at work, he wasn't worried about his employer's post-accident policy requiring urine for a drug test.

That's because Tompkins had long before told his supervisor and the human-resources director at CertainTeed that his doctor had given him permission to use pot for a chronic nausea condition.

Before the drug screen that followed the Oct. 27, 2004, accident, Tompkins also took the extra step of notifying the testing agency that his urine would show evidence of marijuana.

But a few days after Tompkins and his union rep met with Human Resources Director Dennis Kirkpatrick to discuss the positive urinalysis, CertainTeed fired Tompkins, a 24-year employee who would have been eligible for pension benefits after one more year.

Tompkins, 51, says he's never shown up to his cooling-system operator's job at CertainTeed, a Portland building-materials company, under the influence of pot (which helps him sleep and keep food down). The urine test Tompkins took can detect marijuana's presence. But it can't determine whether a subject is impaired at the time by THC, pot's active ingredient.

In a lawsuit filed Jan. 18 in Multnomah County Circuit Court, Tompkins sued CertainTeed seeking $60,000. Tompkins' attorney, Philip Lebenbaum, says the company failed to provide an alternative test for Tompkins or to alter its policies to meet his client's disability needs. State law requires employers to make reasonable accommodations for workers' disabilities, provided they don't present an undue hardship.

CertainTeed's attorney, J. Michael Porter, declined comment on the Tompkins case. But Porter co-wrote a friend-of-the-court brief Sept. 20 in another medical-marijuana case still under review by the Oregon Supreme Court.

In that case, Washburn v. Columbia Forest Products, Inc., Porter supported the company's right to fire a millworker whose urine tested positive for medical marijuana. His amicus brief stated that the Oregon Medical Marijuana Act violates federal drug laws, so no disability accommodation was required. And he argued the medical-marijuana law was never meant to apply to private-sector employers.