Calif. Supreme Court Gives Bosses Leeway to Fire Medical Pot Users

January 24, 2008

Matthew Hirsch, The Recorder

Medical marijuana users in California may have to choose between smoking their pot and keeping their jobs.

In a 5-2 decision Thursday, the California Supreme Court backed RagingWire Telecommunications Inc. in its firing of plaintiff Gary Ross, denying him relief despite the state's Compassionate Use Act of 1996.

The systems administrator had been forthcoming about his off-the-job marijuana use with his employer, offering human resources and the administrator of his pre-employment drug test a copy of his doctor's recommendation. But days after he started work, the company fired him anyway, citing his off-site pot use.

The ruling "provides some clarity to something that's been a nagging question for employers in California for quite a few years," said Robert Pattison, managing partner of Jackson Lewis' San Francisco office, who handled the Supreme Court oral arguments for RagingWire.

Since the case has been under appellate review, Pattison said he hasn't been able to give employers simple, straightforward advice about handling job applicants who test positive for marijuana but use the drug under a doctor's care.

Pattison said he would tell clients they could hire medical marijuana users and address performance problems if they arose, or they could choose not to offer employment and risk a discrimination suit. He would tell them, "You've got to make your best business decision."

Thursday's majority concluded that the Compassionate Use Act created a "narrow exception" that gives medical marijuana users a defense against criminal prosecution in state court -- but no additional rights under employment law.

The court rejected Ross' argument that the Compassionate Use Act implies that medical marijuana should be treated just like any legal prescription drug, and medical marijuana users should be treated like other people with disabilities.

After pointing out that marijuana remains an illegal drug under federal law, majority author Justice Kathryn Mickle Werdegar wrote that the California Fair Employment and Housing Act "does not require employers to accommodate the use of illegal drugs.

"The point is perhaps too obvious to have generated appellate litigation," she added.

Justices Joyce Kennard and Carlos Moreno issued a joint opinion that concurred on some points but mostly dissented.

Calling the majority opinion "conspicuously lacking in compassion," Kennard wrote that the purpose of the Compassionate Use Act is to allow California residents to use marijuana, when a doctor recommends it, to treat medical conditions without being subject to "criminal prosecution or sanction."

"The majority renders illusory the law's promise that responsible use of marijuana as a medical treatment will be free of sanction. [It] allows employers to impose the sanction of job termination on those employees who use marijuana under the statute's provisions," Kennard wrote.

Kennard and Moreno agreed with the majority that Ross' firing didn't support a claim of wrongful termination. But the two justices said companies that fire people for off-duty, doctor-prescribed marijuana use, without showing business impairment, could be liable for discrimination under FEHA.

Americans for Safe Access chief counsel Joseph Elford, who argued the case for Ross, said he was "extremely disappointed" in Thursday's ruling.

But Elford said that the majority opinion, even while rejecting amici arguments from five state legislators who supported Ross' position, left open the possibility of a legislative fix.

"We read that [part] as an invitation to the Legislature to clarify the Fair Employment and Housing Act and make clear that it covers medical marijuana patients just like it would cover any other disabled person," Elford said.

Within hours after the decision was filed, state Assemblyman Mark Leno, D-San Francisco, vowed to introduce a bill that would strengthen medical marijuana patients' rights in the workplace.

Littler Mendelson's Rod Fliegel, who was not involved in Ross v. RagingWire Telecommunications Inc., characterized the decision as "pretty pro-employer for this court."

The ruling appeared to apply broadly to workers who've undergone pre-employment drug tests for different types of jobs and industries, leaving little wiggle room for plaintiff attorneys, he said.

"Flexible rules breed lawsuits. This is a seemingly inflexible rule," Fliegel said.



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