Calif. Supremes Hear From Friends in High Places on Employee's Marijuana Use

August 15, 2006

Mike McKee, The Recorder (San Francisco)

Eight days after accepting a systems administration job with Sacramento's RagingWire Telecommunications Inc. in 2001, Gary Ross was fired for testing positive for marijuana. The 43-year-old father of two admitted he smoked pot at home for back pain, but explained it was legally prescribed by his doctor under the state's Compassionate Use Act. His new bosses backed their decision, however, by citing federal law that still criminalizes marijuana.

Five years later, the dispute shows no sign of losing steam as an employment discrimination suit filed by Ross awaits a full hearing by the California Supreme Court. Although oral arguments haven't been set, a host of high-powered amici curiae have already stoked expectations with hard-hitting briefs on both sides of the issue.

Their arguments could go a long way in helping the court decide whether Ross' state-approved treatment regimen trumps an employer's right to discharge employees for violating federal law.

While the state Supreme Court has held that the Compassionate Use Act -- approved by voters in 1996 -- provides an affirmative defense for using marijuana as medicine, the U.S. Supreme Court has declared medical necessity no exception to the federal Controlled Substances Act.

Last week, 10 state and national medical organizations and two well-regarded disability rights groups took up Ross' cause by filing two separate briefs in which they argued RagingWire violated the state's Fair Employment and Housing Act by firing Ross for following doctor's orders.

In addition, five state legislators took the highly unusual step of filing a third brief, claiming that a 2003 bill they authored was meant to require employers to accommodate off-duty, off-premises pot use by employees with valid prescriptions.

All three briefs were filed -- at the request of Ross' attorneys -- to counter opposing arguments submitted earlier by RagingWire's own heavyweight amici.

Sacramento's conservative Pacific Legal Foundation filed papers in late July maintaining state law can't force employers to retain workers whose judgment could be impaired by drug use.

And two other groups -- the Santa Clara Valley Transportation Authority and the Western Electrical Contractors Association Inc. -- pointed out in separate briefs that employers could lose certain state and federal funds or contracts if they condone pot use by employees.

Both the trial court and Sacramento's 3rd District Court of Appeal ruled in Ross' case that employers aren't required to retain workers who use federally banned drugs.

Jamerson Allen, a partner in Jackson Lewis' San Francisco office who represents RagingWire, said Monday he couldn't comment about the amici without his client's approval. He never called back.

But Joseph Elford, chief counsel of Oakland-based Americans for Safe Access, who is co-counsel for Ross, said the amici's participation proves the case involves an issue "that resonates nationally."

Elford was especially pleased that the legislators had taken a stand because they authored Senate Bill 420, which three years ago clarified when employers are permitted to prohibit medicinal pot use by

In their brief, former Sen. John Vasconcellos and current Assembly members Mark Leno, Loni Hancock, Jackie Goldberg and Paul Koretz said the legislation was meant to let individuals smoke pot at home, while giving employers the power to banish it from the workplace.

"We believed that the voters did not intend for the Compassionate Use Act to apply only to unemployed medical cannabis patients," Oakland solo practitioner Robert Raich wrote on their behalf, "but to all qualified patients, including those who could be productive members of the workforce."

Ross' medical amici -- among them the American Medical Women's Association, the California Nurses Association and the Berkeley-based Drug Policy Alliance -- argued a variation of the legislators' theme.

Daniel Abrahamson, director of legal affairs for the DPA, accused RagingWire of improperly intruding into a doctor-patient relationship and forcing Ross to choose between his job and medical treatment.

The disability rights amici -- Protection & Advocacy Inc. and Equal Rights Advocates -- made the further argument that the 3rd District's decision would enable employers to deny jobs to medicinal pot users without showing there would be any adverse impact on their businesses.

However, Deborah LaFetra, principal attorney for the PLF, said in briefs that there's definitely a measurable impact on businesses. Arguing for RagingWire, she said it has been proven that marijuana impairs smokers' cognitive abilities, which exposes employers to greater liability.

"History abounds with cases of employers found liable," she wrote, "because their employees were driving vehicles, operating heavy equipment or otherwise performing tasks made more dangerous by their being under the influence of alcohol or drugs."

The high court might also be swayed by the Santa Clara Valley Transportation Authority's warning that public agencies could be denied federal and state grants if they don't prohibit pot use.

"If there is going to be a catastrophic loss of funding for these agencies," Santa Clara VTA Assistant General Counsel Richard Katzman wrote, "then that decision should be out in the open for the Legislature or the electorate" to decide.

How much weight the high court will give the amici arguments in Ross v. RagingWire Telecommunications Inc., S138130, isn't possible to gauge, but the justices count on them for a third-party view of the issues.

At the very least, the amici have given the court a lot to think about.

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