California Court Legitimizes Firings for Use of Prescribed Marijuana

January 23, 2008

Karl Vick, Washington Post

LOS ANGELES -- The California Supreme Court ruled today that employers may fire workers who test positive for marijuana even if a doctor has recommended its use for medical purposes.

The 5-2 ruling came in the state that was the first to legalize marijuana for medical use, and further snarls legal issues grounded in conflict with federal law.

The court said a Sacramento company had the right to fire Gary Ross in 2001 after a routine drug test came back positive for marijuana. Ross showed Ragingwire Inc. a copy of his physician's recommendation that he use pot to relieve chronic pain from a back injury incurred while he was with the Air Force.

But the company fired him, saying that drug use was illegal under federal law and left it vulnerable to lawsuits.

"What are they supposed to do?" said Deborah LaFetra of the Pacific Legal Foundation, which filed a brief supporting the employers. "Employers are held liable all the time when drunk or stoned employees cause trouble, either in the workplace or driving home. That's one of the reasons why the drug free workplace is so important."

The high court agreed.

"No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users," Justice Kathryn Werdegar wrote for the majority.

"Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees."

Advocates argued that the state legislature did exactly that, however, when it mentioned the workplace in the 2003 law that elaborated on the ballot initiative voters approved in 1996.

Kris Hermes, spokesman for Americans for Safe Access, the Oakland advocacy group that represented Ross, said advocates would go back to the state legislature to seek more explicit protections.

"It really has less to do with whether someone is intoxicated at work than it has to do with the ability of someone to medicate themselves away from work and not during working hours," Hermes said.

Hermes said technology exists to test employees for levels of the drug in their bodies that would indicate whether they took it recently and are impaired. He said the ruling will affect at least 200,000 Californians estimated to use marijuana under the recommendation of medical personnel.

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