Workers can be fired for using medical pot, state Supreme Court rules

January 23, 2008

Bob Egelko, San Francisco Chronicle

An employee who uses medical marijuana at home can be fired for testing positive for the drug at work, the California Supreme Court ruled today.

In a 5-2 decision, the court said Proposition 215, the 1996 state initiative that allowed Californians to use marijuana for medical purposes with a doctor's recommendation, did not protect workers from dismissal for violating federal drug laws.

Prop. 215 was intended only to exempt medical marijuana users and their caregivers from prosecution under state drug laws, the court said.

"We have no reason to conclude the voters intended to speak so broadly, and in a context so far removed from the criminal law, as to require employers to accommodate marijuana use," Justice Kathryn Mickle Werdegar said in the majority opinion.

Dissenting Justice Joyce Kennard said an employee who uses medication outside work to remedy pain or illness, and whose job performance is not affected, should be protected by state disability laws from arbitrary firing.

The voters who passed Prop. 215 "surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment," said Kennard, joined by Justice Carlos Moreno.

The court ruled against Gary Ross, a 45-year-old computer technician who was fired by a Sacramento firm for testing positive for marijuana despite a doctor's note saying he needed the drug to combat back spasms that cause severe pain.

Ross, according to his lawsuit, injured his back while in the Air Force in 1983 and could find no relief from the spasms until 1999, when his doctor recommended marijuana.

He was hired as a computer administrator by RagingWire Communications in September 2001 and was fired 11 days later for testing positive for marijuana. Ross said he had never used the drug at work or been impaired by its effects on the job, and that he had performed his duties competently.

Nonetheless, the court majority said, neither Prop. 215 nor the state's disability discrimination law requires employers to allow the use of drugs that are forbidden by federal law.

Prop. 215 "does not eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug," Werdegar said.

Noting that the initiative did not mention employment or the workplace, she said RagingWire "has not prevented (Ross) from having access to marijuana" but has only refused to employ him.

Business organizations had come to RagingWire's defense, noting among other things that companies that hire drug users might forfeit federal contracts.

An employer who hires a medical marijuana user is "arguably being complicit in an activity that's illegal under federal law," RagingWire's lawyer, Robert Pattison, told the court.

The ruling is the latest in a series of state-federal conflicts over marijuana since passage of Prop. 215. At least 11 other states have since enacted similar laws.

The U.S. Supreme Court has upheld the federal government's authority to shut state-approved medical marijuana dispensaries and prosecute patients and their suppliers for violating federal laws that ban the possession, cultivation and distribution of marijuana and recognize no legitimate use for the drug.

Today's case is Ross vs. RagingWire, S138130.

The ruling is available at links.sfgate.com/ZCFZ.



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