High court to rule on medical pot firing

November 30, 2005

Bob Egelko, San Francisco Chronicle

The state Supreme Court waded into the conflict between state and federal drug laws Wednesday and agreed to decide whether employees in California can be fired for using medical marijuana.

The justices granted a hearing on an appeal by Gary Ross of Sacramento, who was fired after eight days of work as a systems administrator for an information technology company when he tested positive for marijuana on a pre-employment physical exam. Chief Justice Ronald George and Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno, a majority on the court, voted to review the case.

The ruling will determine whether Proposition 215, the 1996 initiative that legalized marijuana for medical purposes in California, protects employees who can show that they are capable of doing the job.

In his lawsuit, Ross said he had suffered back injuries while in the Air Force, started using marijuana with his doctor's approval in 1999 and was able to work without impairment. He was hired by Ragingwire Telecommunications in September 2001 but fired after the company received results of his drug test.

A state Court of Appeal panel in Sacramento ruled unanimously in September that the company had not discriminated against Ross based on his disability. The three-member panel included Justice Vance Raye, who is being considered by Gov. Arnold Schwarzenegger for appointment to the state Supreme Court.

"An employer need not accommodate a disability by allowing an employee to use illegal drugs,'' Presiding Justice Arthur Scotland wrote. He noted that marijuana remained illegal under federal law and that the U.S. Supreme Court ruled in June that the California law could not shield patients from federal prosecution.

If employers were barred from discriminating against medical marijuana users, Scotland said, they might have to let them bring their drugs to work. Such requirements were not written into the 1996 initiative and should be imposed by the Legislature or the voters, not the courts, the panel said.

Ross' attorney, Stewart Katz, said Ross wasn't asking to be allowed to bring marijuana to work or smoke it during breaks, just to be allowed to continue his medical treatment away from the job. He said Ross had held a series of lesser jobs since his firing.

"It's not an employer's job to do an independent assessment of whether you're potentially violating some federal statute,'' Katz said. "We're seeking enforcement of a California law in a California court.''

An attorney for the company declined to comment.

The case is Ross vs. Ragingwire, S138130.



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