Medical pot rights don't apply at work, court says

January 24, 2008

Crystal Carreon, Sacramento Bee

In the latest blow to medical marijuana rights, the California Supreme Court ruled Thursday that employers can fire workers who test positive for the drug, even when it is used under a physician's advice.

The decision immediately spurred calls by activists and lawmakers for the overhaul of the state's medical marijuana law voters passed more than a decade ago.

But business leaders welcomed the court's position.

"We think this protects employers and the safety of employees in the workplace," said Denise Davis of the California Chamber of Commerce.

By a 5-2 vote in a case that began in Sacramento, the court ruled that the state's Compassionate Use Act of 1996 does not extend rights of medical marijuana users to the work force.

Writing for the majority opinion, Justice Kathryn Mickle Werdegar acknowledged that state law protects medical marijuana users from criminal liability, but said the letter of the initiative never addressed workplace rights – an issue further complicated because marijuana use is illegal under federal law.

"Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees," Werdegar wrote in the 15-page opinion. "Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions."

The court's decision involved a civil claim by Carmichael resident Gary Ross, 45, who lost his job as a lead systems administrator at RagingWire Telecommunications Inc. in Sacramento in 2001.

Ross has used marijuana under a physician's recommendation since 1999 to treat a longtime back injury he sustained while in the Air Force.

At the time of his job application, Ross told RagingWire about his marijuana use and believed he was protected under the state's Fair Employment and Housing Act because he used the drug to treat a disability. He was fired just days after a company drug test came back positive for cannabis.

Ross said Thursday that he never expected to win this "test case," but felt he had exposed the state's weak position in the controversial drug debate.

"This shows the heavy-handedness of the federal government," Ross said. "Where is the sovereignty in California? What did the state get in passing Proposition 215? A bunch of unemployable people?"

Despite California's passage of the medical marijuana measure, federal law prohibits use of the drug and the federal government has moved aggressively to shut down medical marijuana dispensaries in the state.

Ross' attorneys, Stewart Katz of Sacramento and Bay Area attorney Joseph Elford, said Thursday's ruling further weakens marijuana patients' rights.

"It now puts medical marijuana patients at the whim of their employers," said Elford, chief counsel with Americans for Safe Access, an Oakland-based advocacy group. "I think it will force medical marijuana users, who were promised the right to use … to go underground, to take any lengths to avoid a positive drug test."

RagingWire's attorney, Robert M. Pattison of San Francisco, had argued before the Supreme Court that employers, by allowing medical pot use, would inevitably make themselves vulnerable to disruptive searches by federal authorities because the state's law continues to run afoul of the federal Controlled Substances Act.

Pattison, supported by several briefs from groups that included the Sacramento-based Pacific Legal Foundation, said drug use results in increased absenteeism from work, diminished productivity and greater health care costs – all legitimate considerations, the court ruled, for employers looking at job applicants.

Employers, Pattison said, could also be held accountable for safety violations and could lose government contracts by violating the state's Drug-Free Workplace Act of 1990.

"RagingWire was not on a campaign here," Pattison said Thursday. "RagingWire wanted to make sure it was providing secure services for its customers and for the government, and provided a safe work environment.

"We're not saying you can't use marijuana. We're just saying we don't have to employ you."

In a statement from RagingWire on Thursday evening, spokesman Reed Smith said the company's work – handling valuable data and computer needs – mandates that employees pass "stringent qualification requirements" to ensure a safe and secure workplace.

But in the dissenting opinion, Justice Joyce L. Kennard said the ruling "disrespects the will of California's voters" who passed the law never intending that it would affect the employment of medicinal marijuana users.

Kennard, supported by Justice Carlos R. Moreno, likened marijuana to other prescription drugs, including Vicodin, Ritalin and Valium, and reiterated that Ross' use was not during company hours or on company property.

The majority opinion, Kennard said, seriously compromised the Compassionate Use Act.

"The … decision leaves many Californians with serious illnesses just two options: continue receiving benefits of marijuana use … and become unemployed … or continue in their employment, discontinue marijuana treatment, and try to endure their chronic pain," Kennard wrote. "Surely this cruel choice is not what California voters intended."

Assemblyman Mark Leno, D-San Francisco, said he plans to introduce legislation to make it illegal for employers to fire or refuse to hire medical marijuana users over a drug test.

The court's ruling, he said, "gutted" the intention of the Compassionate Use Act, or Proposition 215.

"Following the court's logic, you have to believe that only unemployable people would benefit from Proposition 215, and that makes no sense," Leno said. "The people of California did not intend for patients of medical marijuana to be unemployed."

More than 55 percent of California voters passed the initiative in 1996 – the first such medical marijuana law in the country.

Eleven other states have since passed similar legislation based on California's Compassionate Use Act.

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