Calif. Supreme Court May Need Tiebreaker for Pot Dispute

November 06, 2007

Mike McKee, The Recorder (CA)

Pity Justice Carol Corrigan. Not only was she sick with the flu on Tuesday, but she might turn out to be the deciding vote in a major case that could determine whether employers have the right to fire employees who use marijuana as medicine.

Although the lines weren't absolutely clear, it appeared during oral arguments Tuesday that three of the California Supreme Court's seven justices, including the two most conservative, felt uncomfortable with the prospect of forcing employers to retain pot-smoking workers. Three of the more moderate justices, however, appeared equally concerned about making ailing employees choose between their jobs and their health.

That would put the final decision in the hands of Corrigan, who will watch a videotape of the hearing at a later date.

Don't take that breakdown as gospel, though. The six justices in court asked enough questions of attorneys for both parties that it would be difficult at best to make an accurate prediction.

The underlying case was filed by Gary Ross, who was fired from his job as a lead systems administrator for Ragingwire Telecommunications Inc. on Sept. 25, 2001, only eight days after he was hired. Ross was let go after testing positive for marijuana, which he had used at home for two years on a doctor's recommendation for serious back problems.

In his suit, Ross accused Ragingwire of violating the state's Fair Employment and Housing Act, which requires employers to take steps to reasonably accommodate employees with disabilities. He also argued that he was doing nothing illegal under state law because the Compassionate Use Act, passed by voters in 1996 as Proposition 215, allows doctors to recommend marijuana for patients in need.

Sacramento County Superior Court Judge Joe Gray tossed Ross' suit in 2003, holding that even though pot can be used medicinally under state law, it still remains a violation of federal law. He ruled that Ragingwire was within its rights to fire Ross. Sacramento's 3rd District Court of Appeal affirmed in 2005.

On Tuesday, Chief Justice Ronald George immediately jumped in with questions for Ross' lawyers, which made it appear he felt the lower courts got it right.

"Can we force an employer to keep an employee who's a lawbreaker?" he asked Joseph Elford, chief counsel of the Oakland, Calif.-based Americans for Safe Access, which is serving as co-counsel for Ross.

Elford argued that Ross' pot use was legal under state law and tried to compare marijuana to Vicodin, which others use for health problems.

"But," Justice Ming Chin interjected, "Proposition 215 didn't give marijuana the same status as any other prescription drug" because it's generally still illegal to possess. "Isn't that important to this case?"

George piped up again by insinuating that the Compassionate Use Act also offered no directives about how it affected employers.

Justice Marvin Baxter expressed concerns about businesses having to retain workers who could at any moment be arrested and taken to jail. Wouldn't that be a problem, he asked, for an employer who wants some permanency and continuity in his staff?

Elford called Baxter's hypothetical "speculative" and noted that federal authorities mostly concentrate on bigger drug violators and not individual pot smokers.

Much was also made of Ross' claim that he only smoked pot at his home in his off hours.

Justice Carlos Moreno raised the fact that the CUA explicitly states that employers don't have to accommodate pot use during work hours or on their job premises. "From that," he asked Elford, "can't one draw the inference that off-premise use is allowed?"

Elford agreed, only to have Chin pounce again.

"Under your analysis," he said, "it would be perfectly proper for an employee to show up at work under the influence."

Later, while questioning Ragingwire's lawyer, Robert Pattison of Jackson Lewis in San Francisco, Moreno turned Chin's query around, asking if there isn't a difference between being under the influence and merely having a substance detected in your blood stream.

Justice Kathryn Mickle Werdegar seemed to have doubts that Ragingwire had violated FEHA, but wondered how employers could escape the basic requirements of the CUA. "Isn't the Compassionate Use Act and what it was intended to do central to this case?" she asked.

"If someone wants to treat themselves [with pot]," Pattison said, "we're not obligated to employ."

Some of Pattison's arguments seemed to annoy Justice Joyce Kennard. She kept telling him that the issue in the case is more than just the use of illegal drugs and reminded him he needed to take into account a provision of FEHA that requires employers to accommodate an employee's disability.

"In this case," she demanded, "where is the reasonable accommodation by the employer?"

Ross also was represented during arguments by Sacramento lawyer Stewart Katz. He was hit with many of the same questions as co-counsel Elford.

A ruling in Ross v. Ragingwire Telecommunications Inc., S138130, is due within 90 days.



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