Workers can be fired for using medical pot off duty, court rules
January 24, 2008
Maura Dolan, Los Angeles Times
The California Supreme Court weakened the effect of the state's beleaguered medical marijuana law, ruling Thursday that employers may fire workers for using physician-recommended marijuana while off duty, even if it did not hurt their job performance.
Supporters of medical marijuana immediately criticized the court's 5-2 ruling, saying it undermined the 1996 law, which prohibits the state from criminalizing the medical use of the drug.
Hundreds of medical marijuana users have complained that they have been fired, threatened with termination or not hired by California companies because of their drug use, according to one advocacy group.
In siding with employers, the California Supreme Court said the Compassionate Use Act passed by voters and later amended by the Legislature imposed no requirements on employers.
"The Compassionate Use Act does not eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug," Justice Kathryn Mickle Werdegar wrote for the majority.
Justice Joyce L. Kennard called the decision "conspicuously lacking in compassion."
"The majority's holding disrespects the will of California's voters," wrote Kennard, whose dissent was joined by Justice Carlos R. Moreno.
The voters "surely never intended that persons who availed themselves" of the medical marijuana act "would thereby disqualify themselves from employment," Kennard said.
Within hours of the court's decision, Assemblyman Mark Leno (D-San Francisco) announced that he would introduce legislation to prevent employers from discriminating against medical marijuana users.
"The people of California did not intend that patients be unemployed in order to use medical marijuana," he said.
The court majority upheld the firing of Gary Ross, an Air Force veteran whose doctor recommended marijuana for chronic back pain stemming from an injury in the military and whose disability qualified him for government benefits.
Ross, 45, was hired by RagingWire Telecommunications Inc. in 2001 as a systems engineer.
Before taking a required drug test, Ross provided a copy of his physician's recommendation for marijuana.
The company fired him a week after he started the job because his test revealed that he had used marijuana.
Ross sued the company on the grounds that it failed to accommodate his disability as required under a state anti-discrimination law.
He contended that he had worked without any problems at other jobs in the same field since becoming a medical marijuana user.
Lower courts, however, sided with the employer.
"All I am asking is to be a productive member of society," Ross said in a written statement. "I was not fired for poor work performance but for an antiquated policy on medical marijuana."
Stewart Katz, Ross' lawyer, said he was disappointed but not surprised by the majority's ruling "because of what the political realities are." He said the ruling could be overturned by a legislative amendment to the marijuana law.
Ross, who continues to use medical marijuana, is now employed in another field.
His lawyer refused to disclose his current occupation because his employer "is not terribly tolerant."
Attorney Robert M. Pattison, who represented RagingWire Telecommunications, a Sacramento data center, said the ruling resolved questions that have troubled employers about the use of medical marijuana and did "not at all" eviscerate the marijuana law.
"In fact, the court makes it clear that the point here is the medical marijuana law doesn't address employment," Pattison said.
California is one of 12 states with medical marijuana laws. At least one of them, Rhode Island, specifically protects workers from being fired for their medical use of the drug, said Bruce Mirken of the Marijuana Policy Project, an advocacy group.
"The court is claiming that California voters intended to permit medical use of marijuana, but only if you're willing to be unemployed and on welfare," Mirken said. "That is ridiculous on its face, as well as cruel."
Joseph D. Elford, chief counsel of Americans for Safe Access, which argued the case on behalf of Ross, predicted the ruling would spark an increase in employer sanctions against medical marijuana users.
His group already has reported hundreds of complaints of discrimination by employers.
Medical marijuana patients may now be forced "to go underground and to forgo using marijuana before a drug test," he said.
Traces of marijuana can linger in the body for weeks after its use, long after the patient has stopped using the drug, advocates said.
Ross' lawsuit might have prevailed if the state's law gave marijuana the same legal status as prescription drugs, the court majority said.
The law could not have done that because the drug remains illegal under federal law, the majority said.
The two dissenting justices argued that the medical marijuana law protected patients from criminal prosecution and "sanction," which would include job termination. They said Ross did not seek to possess or use marijuana at work.
They also contended that the majority would not have ruled against Ross if he had been taking other doctor-approved drugs that might affect work performance, such as Vicodin, Ritalin and Valium, as well as many over-the-counter cold remedies.
Adam Wolf, an attorney with the American Civil Liberties Union's Drug Law Reform Project, said at least one part of the ruling should be welcomed by the medical marijuana movement.
The decision made clear that California could protect medical marijuana users from job discrimination, despite federal law, if the Legislature or voters chose to amend the law.
"Let us hope, then, that this ruling serves to silence those who insist that California must march in lock-step with the federal government's ill-considered medical marijuana ban," Wolf said.
Although there was no evidence in the case that medical marijuana impaired Ross from doing his job, many employers, workers and customers want "a drug-free workplace," said Deborah LaFetra, an attorney with the Pacific Legal Foundation, a group that advocates limited government and argued on behalf of the employer in the case.
"Drug-using employees are known to have impaired abilities, both mental and physical, that can alter their judgment and other necessary skills for their work," she said.
Times staff writer Eric Bailey contributed to this report.