California Supreme Court upholds anti-marijuana ruling

January 23, 2008

Melissa Evans, Daily Breeze (CA)

California's highest court dealt a blow to medicinal marijuana advocates Thursday, ruling that employees can be fired if they test positive for marijuana - even if the worker has a prescription for the drug allowed under state law.

The California Supreme Court ruled that discrimination laws don't apply in cases where employees fail drug tests because marijuana is still considered illegal by the federal government.

Justice Kathryn Werdegar, who wrote for the 5-2 majority, also argued the state's 1996 legislation legalizing medicinal marijuana didn't address the rights of employees and employers. The Compassionate Use Act only protects medicinal users from arrest or prosecution, the court ruled.

"This is bad news for me and a lot of other people," said a San Pedro woman who suffers from a back injury and would only give her first name, Ann, out of fear of retribution from her employer.

"So people can walk around high on prescription painkillers, but I can't take the medicine I need to get through the day? It's unbelievable."

Patients like Ann had hoped for a favorable ruling, which has implications for pot users in pain who need a paycheck, they say.

"Now I can smoke it legally, but I can't work?" said Bill Brigg, another medicinal user who has polio and lives in Long Beach. "I guess those who are suffering will continue to suffer. What's the alternative?"

Advocates argue that as long as workers are able to perform their job in accordance with company standards, they shouldn't be denied employment. Because marijuana stays in the system for up to 30days, a positive drug test does not mean the person is high, they say.

But the company at the center of Thursday's decision, a Sacramento-based telecommunications firm called Ragingware Inc., argued that it could be subject to a federal raid, and be liable for mistakes made on the job. Other companies that signed onto the case argued successfully that they could lose federal contracts and grants if they allowed employees to smoke pot.

The worker who was fired, Gary Ross, had sustained back injuries in the Air Force and smoked pot to ease the pain. He was able to perform his job duties, but the company fired him anyway, according to court documents.

The court's decision was disappointing because of its limited interpretation of the Compassionate Use Act, said Noel Ragsdale, a professor of employment law at USC.

"The fundamental purpose of (the Act) was protect people from being disadvantaged or sanctioned unfairly," she said. "It wasn't limited specifically to criminal sanctions."

Even if the court had ruled in favor of Ross, employers would still be able to fire marijuana-using workers who couldn't perform their duties, the professor said. Those arguments, however, would have been made on a case-by-case basis like other discrimination claims, Ragsdale said.

"Companies probably could argue successfully in some cases," she said. "But to make a blanket statement like this, I think that was disappointing."

Workers are generally subjected to drug tests if their specific duties - such as operating machinery or driving a car - could be impaired by use of substances.

South Bay companies had little to say about Thursday's ruling. A spokesman with Redondo Beach-based Northrop Grumman Space Technology, one of the largest local employers, said the company would not comment.

A spokesperson from American Honda Motor Co. Inc. in Torrance would only say that the company does not drug test. Other companies did not return phone calls.

The nonprofit advocacy group Americans for Safe Access, which represented Ross, estimates that 300,000 Americans use medical marijuana. The Oakland-based group said it has received hundreds of employee discrimination complaints in California since it began tracking them in 2005.

Those who run medicinal marijuana dispensaries in the South Bay were leery about using their names for fear of being harassed by federal agents and naysayers in the community.

"If it doesn't affect your job performance, then it shouldn't be an issue, period," said one woman who runs a Gardena dispensary.

Torrance, Hermosa Beach, Redondo Beach and most other South Bay cities have either enacted bans on dispensaries or placed moratoriums on them. There are about six dispensaries in San Pedro and Harbor Gateway, which are under the jurisdiction of the city of Los Angeles, and Long Beach has at least a dozen.

Advocates for medicinal marijuana say they will now urge the state Legislature to pass a law specifically protecting workers from sanctions if they smoke pot.

"We've got to get clarification," said Kris Hermes, spokesman for Americans for Safe Access. "We will ask legislators to continue to stand behind workers and their right to be employed."

Assemblyman Mark Leno, a Democrat who represents part of San Francisco, said he will introduce legislation addressing those concerns in the next few weeks.

melissa.evans@dailybreeze.com

The Associated Press contributed to this article.



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