Medical pot users' job rights at issue

February 05, 2006

Josh Richman, ANG Newspapers

An Oakland-based advocacy group is taking the medical marijuana battle deep into the workplace this week by asking the state's highest court to protect patients not only from prosecution, but also from firing.

Americans for Safe Access will file a California Supreme Court brief Tuesday on behalf of Gary Ross of Sacramento, who was fired in September 2001 after just a few days on the job at RagingWire Telecommunications.

"It's fair to say it's been a widespread problem ... We've consistently gotten calls in this area essentially since we've been taking calls," ASA chief counsel Joe Elford said Friday. "Except for law enforcement encounters, this is the biggest concern facing medical marijuana patients."

When Ross' pre-employment drug test showed marijuana use, he told RagingWire he was authorized to use the drug under state law for his disability: chronic back pain from injuries suffered in 1983 while serving in the U.S. Air Force. He was fired anyway.

Ross contends being fired for using medical marijuana as state law permits, and RagingWire's failure to provide him a reasonable accommodation for his disability violates the state's Fair Employment and Housing Act. Yet the state Court of Appeal in Sacramento last September upheld a trial court's dismissal of the case, finding the Compassionate Use Act of 1996 protects people from state criminal prosecution but not from job actions.

"Unless and until the Legislature, or the electorate, amends FEHA to compel an employer to accommodate an employee's medicinal use of marijuana, we conclude that an employer does not violate FEHA by firing, or refusing to hire, a person whose pre-employment drug test reveals that the person is using an illicit drug, including marijuana, which is illegal under federal law even when it is being used for medicinal purposes in accordance with the Compassionate Use Act," Presiding Justice Arthur Scotland wrote.

ASA signed on as co-counsel after this ruling, and four state Supreme Court justices — Chief Justice Ronald George and associate justices Joyce Kennard, Kathryn Werdegar and Carlos Moreno — in November granted Ross' petition for review.

What this means "depends on how much of an optimist you are," Elford said. "We would like to think the Supreme Court is taking the case to give Mr. Ross the remedy to which he's entitled under California law, but of course it's impossible to predict."

RagingWire's attorney, D. Gregory Valenza of San Francisco, declined to comment Friday, but in a December posting to his firm's Web site said RagingWire "is committed to compliance with FEHA, as well as a drug-free workplace, and is required by many of its customers to provide a drug-free workplace."

Francis Alvarez, coordinator of Valenza's firm's Disability Management Practice Group, wrote employers "will breathe a sigh of relief if the California Supreme Court affirms the Court of Appeal. It would be disturbing, to say the least, if 'reasonable accommodation' meant ignoring illegal drug use."

San Luis Obispo attorney Steven Chanley, a shareholder with the Employer Advocates Group law firm, blogged about the case last September: "It is difficult not to be sympathetic to the plight of those who must rely legitimately on mind-altering drugs to mitigate their physical pain. However, it seems a non-starter to argue that the employment laws require an accommodation in the form of permitting illegal drug use."

ASA Legal Director Kris Hermes, in a news release issued last week, contended a Supreme Court victory could go well beyond just impacting tens of thousands of medical-marijuana patients working in California "by providing protections, in a civil context, against many other forms of discrimination.

"A victory in this case will also help to clarify and reinforce the argument that state law is sovereign and not pre-empted by federal law," Hermes sad.

Elford said Ross continues using medical marijuana after taking a job in a different field: mining. "It's quite a job shift, but I guess after the dot-com burst ... it really has worked out in a very unfortunate manner for him."

Contact Josh Richman at jrichman@angnewspapers.com.



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