Employer can't breach medical marijuana patient's rights

December 01, 2007

Joe Elford (Op-Ed), San Francisco Chronicle

Gary Ross is a 45-year-old veteran living in Carmichael, near Sacramento, and until 2001, the mild-mannered father of two had been leading a productive life as a computer systems administrator, notwithstanding his chronic pain and spasms from a back injury sustained in 1983, while in the Air Force.

But Ross' life took an unfortunate turn for the worse in September 2001 when his employer, RagingWire Telecommunications, fired him for using medical marijuana to treat his debilitating illness.

Now Ross finds himself in the whirlwind of a major employment case - one that is being closely followed by patients in California and across the United States. It's the latest illustration of the tension between federal and local authorities around medicinal marijuana. California residents legalized it more than a decade ago, and 11 other states have since followed suit - but that has not stopped the feds over the years from raiding pot clubs, even the homes of patients.

Conservative groups contend that if workers are allowed to smoke medicinal pot, even off the job, employers could be at legal risk if something went wrong at the office, not to mention that firms could potentially lose valuable federal contracts and grants. But as chief counsel for Americans for Safe Access - the medical marijuana patients' rights group that argued Ross' case before the California Supreme Court on Nov. 6 - I can assure you that these contentions are legally meritless. Furthermore, state lawmakers never intended to deny basic job rights for medical marijuana patients.

Many patients have experienced a plight similar to that of Gary Ross. Since it began recording instances of employment discrimination in 2005, the Oakland-based Americans for Safe Access has received hundreds of such reports from California in which employers have fired patients from their job, threatened them with termination, or denied them employment because of a positive test for marijuana.

Until 1999, Ross used a regimen of pain medications, including Vicodin and muscle relaxants, to treat chronic pain and spasms in his lower back. But after years of no success with these medications, Ross' physician recommended marijuana to better treat his condition. This recommendation, written nearly three years after California voters passed the Compassionate Use Act of 1996, made Ross a "qualified patient."

Since becoming a medical marijuana patient in 1999, Ross continued to work successfully as a computer systems administrator, a skill he learned in the Air Force.

Based on his successful performance with other corporations, Ross was offered a position in 2001 as lead systems administrator at RagingWire Telecommunications. But just after the Sacramento firm offered Ross the job, he was asked to take a drug test, which he willingly did. When Ross went to the clinic for the test, he presented a copy of his physician's written recommendation to use marijuana. Not surprisingly, Ross tested positive for marijuana.

After the test, Ross presented a copy of his physician's recommendation to the human resources department at RagingWire and informed the director that he was a qualified medical marijuana patient. RagingWire confirmed Ross' recommendation for marijuana with his physician.

Yet despite the fact that Ross had performed his job competently over the years and his off-duty use of medical marijuana would not impair his ability to perform his job in any way, RagingWire fired Gary Ross "because of his choice of (medical) treatment." As a result of his use of marijuana at home to treat his disability, Ross was left jobless.

One year later, in September 2002, Ross took RagingWire to court, arguing that qualified medical marijuana patients under California law have a right to work free from discrimination. Unfortunately, both the Sacramento Superior Court and the Third Appellate District Court rejected his argument.

In October 2005, with the help of Americans for Safe Access, Ross took his case to the California Supreme Court. Multiple "friend of the court" briefs were filed on behalf of Ross and the thousands of working patients across California.

The oral arguments before the California Supreme Court on Nov. 6 raised two important issues. The first is whether states have the sovereign ability to pass laws that seek to protect the health and welfare of their people, and protect against disability discrimination without interference from the federal government.

That question is easily answered - in the context of employment. There are no federal Drug-Free Workplace laws that require employers to fire workers unless they are found to possess, use or distribute illegal drugs at the workplace. Because Ross never conceded to using medical marijuana on the job and had never come to work intoxicated, the Drug-Free Workplace laws did not apply.

The second issue raised in the case is whether patients have a privacy right to choose their own medical treatment without the employer dictating it.

This is largely what the Ross case is about and, ideally, will follow the long line of precedent, which states that the California Constitution prohibits employers from intruding upon the physician-patient relationship and interfering with the health decisions made as a result.

"I wasn't fired for poor performance or for being a danger to my co-workers," Ross said at a recent hearing. "I was fired due to an antiquated and unfair company policy on medical marijuana. This practice allows employers to undermine state law and the protections provided to patients."

The progressive employment policies under the State's Fair Employment and Housing Act should also play a part in preventing such forms of discrimination, and California must continue its leadership role in protecting disabled workers.

Ross hopes that the state Supreme Court, expected to weigh in this February, will overturn the lower court rulings and provide much-needed employment discrimination protections for patients. The alternative is to treat medical marijuana patients, our most vulnerable, as second-class citizens.

Joseph Elford is co-counsel in Ross vs. RagingWire, a role he plays while acting as chief counsel of Americans for Safe Access. For more information on the Ross case or Americans for Safe Access, see: www.americansforsafeaccess.org. Contact us at insight@sfchronicle.com.



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