Calif. Firms Can Fire Medical Marijuana Users

January 24, 2008

Karl Vick, Washington Post

The California Supreme Court ruled Thursday that employers can fire workers who test positive for marijuana even if they have a note from a doctor recommending its use for medical reasons.

The 5 to 2 ruling came in a state that was the first to legalize cannabis for medical use but has followed up with ambiguity and ambivalence about making it a reality.

In the latest ruling, the high 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 to smoke the drug to relieve chronic back pain from three lumbar vertebrae fractured when he fell off the wing of an F-16 as an Air Force mechanic in 1983.

"From 1999 when my doctor started recommending medical marijuana, I can stop that spasm from getting into a knot and I don't need any pain medication," said Ross, adding he smokes only when he experiences spasms. "Prior to 1999 I was carted off in an ambulance a half a dozen times. Since 1999, only once."

But the company fired him, arguing that drug use was illegal under federal law.

"What are they supposed to do?" said Deborah La Fetra of the Pacific Legal Foundation, which filed a brief supporting the company. "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 largely 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 2004 law refining the historic ballot initiative passed by voters in 1996.

In a friend-of-the-court brief filed in support of Ross, five current and former lawmakers quoted statutory language stating that employers were not obliged to tolerate marijuana use on the job. The lawmakers said that amounted to an implicit statement that people who used marijuana medically would, in fact, be expected to have jobs.

Assemblyman Mark Leno (D-San Francisco) immediately announced he would introduce legislation to make the right explicit.

"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," said Kris Hermes, spokesman for Americans for Safe Access, the Oakland advocacy group that represented Ross.

Said Ross: "What we're fighting here is the stigma of the history of the '60s against the elderly generation that's in power."

Part of the confusion in California stems from blurring distinctions between criminal and civil law covering the workplace. The majority opinion noted that Californians voted only to decriminalize marijuana use, saying that "the voters were entitled to change the criminal law without also speaking to employment law."

But while federal criminal law still bars marijuana across the board, employers would not necessarily run afoul of federal law by employing people who use marijuana away from work, said Noel Ragsdale, an expert on employment law at the University of Southern California.

Ragsdale said the 1988 federal drug-free workplace act requires employers to certify that they have a policy against employees abusing drugs in the workplace. "That, I think, is not implicated in a situation where someone is taking medical marijuana at home and then coming to work," she said

Hermes said technology exists to test employees not simply for evidence of having taken marijuana, but for levels that would indicate whether they are impaired while on the job.

"I don't think the new technology is cheap," he conceded.

The ruling stands to affect some 200,000 Californians estimated to use marijuana under the recommendation of healers.

"They have an impossible choice, just as the defense says: You can live with excruciating pain, and work. Or you can get relief the act says you can get, and not work," Ragsdale said.

"It's a real visceral blow to any kind of real ability to realize the benefits of that Compassionate Use Act."

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