California Supreme Court to rule on medical marijuana and employment

November 20, 2007

Geoff Johnson, California Aggie

Within 90 days, the California Supreme Court will use the case of a medical marijuana patient who lost his job to determine whether or not companies can fire medical cannabis users for testing positive for marijuana.

The ruling hinges on Gary Ross, a U.S. Air Force veteran who was honorably discharged from the military in 1980 because of back pains. Ross used the computer knowledge he learned to start a career as a computer assistant, said Ross' attorney Joseph Elford.

"While he was a computer assistant, he visited his doctor," Elford said. "His doctor suggested that he use marijuana to treat his back as opposed to some of the conventional pain medications that he had been taking."

This treatment, however, led to Ross' termination at RagingWire telecommunications in 2001 when he tested positive for marijuana. Ross had previously informed his employer that he was approved for medical marijuana and used it regularly.

Ross took his case to the Sacramento County Court, but the court ruled in favor of RagingWire, said Americans for Safe Access communication specialist Chris Hermie.

State law has allowed the use of marijuana for medicinal purposes since Proposition 215, the Compassionate Use Act, was approved in 1996. However this remains in conflict with national law, as use or consumption of marijuana remains illegal on a federal level.

RagingWire itself wouldn't violate any laws by employing Ross, Elford said. Certain safety-sensitive positions such as construction require their employees to be drug-free, but Ross' position did not meet this criteria.

"[RagingWire] throws in some lip service to the Drug Free Workplace Act," he said. "But that provides only to distribution or use of drugs in the workplace. The drug-free workplace has no effect here."

The California Fair Employment and Housing act requires employers to accommodate their staff as long as it doesn't create hardship for the employer. Asking a business to install a wheelchair ramp might be difficult if the business is a family grocery store, Elford said.

In this case, however, no action would be necessary on the part of RagingWire, he said.

"It's the one medication that helps Gary Ross sleep at night and in turn actually become a more productive worker," he said. "It's important to understand he does not claim or nor [sic] does he use marijuana on the job."

The company has made no allegations that Ross' performance was impacted by his use of marijuana, he said.

A similar case in Oregon ruled in favor of the employer in 2006, as the defendant's leg spasms did not qualify as a disability.

"There's not anything within the medical marijuana realm [in California] that has gone to court really on this," said Compassionate Coalition Communication Director Nathan Sands. "This is really going to be a groundbreaking case in that area, but there's been plenty of cases in the past regarding workers rights that have generally have come out in favor of the worker."

When contacted, RagingWire declined to comment.

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