Legal pot use can make jobs go up in smoke
December 29, 2005
Kimberly Trone, Press-Enterprise
Donna Dixon found out the hard way that a state law allowing her to use marijuana for glaucoma didn't keep her from getting fired from a casino job after a positive drug test.
In 1996, California voters passed the Compassion Use Act that allowed the cultivation, transportation and use of marijuana by patients and caregivers with a doctor's recommendation.
It did not, however, include job protection, said Michael Shapiro of the University of Southern California School of Law, an expert in constitutional issues.
The California Supreme Court this month agreed to hear the case of Ross v. Ragingwire Telecommunications to decide whether employers can fire employees for off-duty use of marijuana in accordance with state laws.
The justices have not set a date to hear the case.
Workers who have been fired or disciplined for using medicinal marijuana have filed numerous complaints with the state, claiming their employers violated California labor law, which prohibits people from being punished for performing a legal act while off duty, said Dean Fryer, spokesman for the California Department of Industrial Relations.
But the state is not processing their complaints.
"We are not accepting any claims for discrimination regarding the use of medical marijuana because federal law makes it illegal and therefore it is not lawful off-duty conduct," Fryer said, adding that the California labor code does not distinguish between state and federal law.
Dixon, the mother of two teenage boys, was fired earlier this year for testing positive for marijuana during a random drug test. She worked in the Pechanga Resort & Casino for almost three years, first as a housekeeper and later counting money.
Pechanga representatives did not respond to requests for an interview, but an arbitration agreement between Dixon and the tribe said Pechanga employees are subject to discharge in the event of a positive drug test.
Dixon, 50, said she is optimistic the California justices will decide in favor of medicinal users, who use the drug to treat symptoms of chronic or debilitating illnesses such as migraines and cancer.
"I want clarity. There are a lot of people who want clarity on this," Dixon said from her Lake Elsinore-area home.
Some employers say the issue was clarified when the U.S. Supreme Court ruled in June that state laws do not protect medicinal-marijuana users from federal laws that make such behavior criminal.
Jim Richardson, regional director of the California Association of Employers, said companies were concerned about how to handle employees' medical-marijuana use until that decision.
The not-for-profit employers association of 500 members assists small-to-medium companies with human-resources issues.
"Our association is now able to give (our members) assurance they do not have to balance a duty to accommodate an applicant or employee whose drug use impairs their performance and poses a potential liability should an accident occur," Richardson said.
He said, however, that employers could consider accommodating an employee or job applicant if there are no safety issues that are involved in their work.
Those accommodations could also include steering the user toward a prescription drug such as Marinol, although medical-marijuana advocates argue the synthetic pharmaceutical is not nearly as effective.
Under a mandate from the state, Riverside County began issuing identification cards for medicinal medical users on Dec. 1. The card alerts police that the holder has the appropriate documentation to use and transport marijuana.
Riverside County, which has about 17,000 employees, is closely monitoring the court cases, said the county's director of human resources, Ron Komers.
And even though the county is issuing the cards, job applicants and employees of Riverside County are disqualified from employment for using marijuana -- even if they use the substance with the recommendation of a physician, Komers said.
"We are an interesting situation," Komers said. "Because we do receive federal funds we are subject to federal transportation guidelines to fire or discipline somebody who utilizes an illegal substance."
Advocates for medicinal marijuana say it is a mistake to confuse federal criminal laws with state employment laws when marijuana is legitimately being used to treat a person's disability.
"No person should lose their job solely because they use medical marijuana," said Nikos Leverenz, associate director of the Drug Policy Alliance in Sacramento, which supports medical-marijuana use.
The alliance urged the state Supreme Court to hear the case of Gary Ross, a computer systems administrator who was terminated after testing positive for marijuana.
He said he used the drug at home to alleviate chronic back pain.
"Workers and job applicants with disabilities may be compelled to choose between employment opportunity and medical treatment," the alliance argued in a 12-page letter filed with the court.
Bruce Mirken, director of communications for the Marijuana Policy Project, said advocates are not suggesting employers don't have a right to be concerned about productivity, safety and workplace performance.
"Obviously they do," Mirken said, adding that many employers may not have revised their decades-old drug-use policies in light of new laws allowing medical-marijuana use.
Dixon said she told her employer about her use of marijuana from the day she was hired until she was fired from the $12.40-an-hour job at Pechanga.
"I had a good work record, good write-ups. I was in no danger of being fired, but after that (drug test) it was like I had the plague," Dixon said. "They took a person who worked every day -- a law-abiding person -- and turned me into a welfare case by taking away my job."
Dixon appealed a Pechanga denial of unemployment benefits and prevailed.
The arbitrator, Stephen B. Chan, agreed that Dixon was candid about her marijuana use and concluded she was "discharged for reasons other than misconduct."
Since being fired, Dixon believes she was disqualified from two solid job prospects, one for a large supermarket chain and the other for a large soda pop company, after mentioning her use of medical marijuana during job interviews.
"It is about principles," she said. "The people of this state said it is OK for me to use marijuana as long as me and my doctor agree. I am exercising my legal rights. Why should I lie?"
Critics say pre-employment and random drug tests are an invasion of privacy, performed almost solely to weed out marijuana users, even though alcohol use poses more of a workplace hazard.
All a urine drug test tells you is that an individual has used a drug within the past six weeks and one of the drug residuals that remains in a person's system longest is marijuana, said Dr. David Bearman, a Santa Barbara physician helping to lead a national campaign to legitimize marijuana for medicinal uses.
"The most significant drug of abuse is alcohol and alcohol is cleared relatively rapidly from the urine. This test cannot tell you about the drug most likely to interfere with an employee's job performance," Bearman contends.
Richardson of the employers association said drug testing is an important safety tool and the courts have upheld its use.
"Drug testing provides employers a means of deterring people who use illegal substances from entering the workplace and removing employees who may pose a danger to themselves and/or others," Richardson said.