Court rules against employee medical pot use

January 30, 2008

Liz Highleyman, Bay Area Reporter

The California Supreme Court ruled Thursday, January 24, that an employer may fire employees who use medical marijuana outside of work, upholding two lower court decisions.

"We're disappointed that the court's decision allows an employer to intrude into a doctor-patient relationship," said Daniel Abrahamson of the Drug Policy Alliance, which filed a friend-of-the-court brief in the case. "It puts many patients in the difficult position of having to choose between their jobs and their doctor-recommended medical treatment. "

The 5-2 ruling was the result of a lawsuit by Sacramento resident Gary Ross, who sued RagingWire Telecommunications under the Fair Employment and Housing Act. The company hired Ross as an engineer in 2001, but fired him a week later after he failed a pre-employment drug test. Ross, who has a doctor's recommendation for medical cannabis, said his off-duty marijuana use did not impair his work performance, and alleged that RagingWire failed to accommodate his disability.

California's Compassionate Use Act (Proposition 215), passed by state voters in 1996, allows qualified patients to use medical marijuana on the advice of their physicians. The Medical Marijuana Program Act (SB420), enacted by the state Legislature in 2003, clarified implementation of the law.

Ross suffers from chronic back pain and muscle spasms due to an injury sustained in the Air Force. "I have tried every type of pain medication and marijuana works best," he said. "All I am asking is to be a productive member of society."

"To fire a productive employee for use of doctor-recommended medication during their off hours, in a manner that doesn't interfere at all with their work, is simply dumb," Marijuana Policy Project spokesman Bruce Mirken told the Bay Area Reporter . "Medical marijuana should be treated by employers like any other medication needed by an employee."

The majority opinion stated that the Compassionate Use Act and its follow-up legislation do not explicitly allow for medical cannabis use by employees; the law, the justices said, only protects qualified users from criminal prosecution. Further, marijuana use – for any purpose – is not sanctioned under federal law, and "the FEHA does not require employers to accommodate the use of illegal drugs," wrote Justice Kathryn Mickle Werdegar.

Assemblyman Mark Leno (D-San Francisco), who co-authored SB420, criticized the majority's reasoning. Based on the decision, he said, "We'd have to say that voters meant compassionate use could only be by unemployed people. Clearly, that's not what they meant."

Shortly after the decision was released, Leno announced that he would introduce patients' rights legislation to prevent employers from discriminating against medicinal cannabis users in hiring and firing decisions.

Americans for Safe Access, the medical marijuana advocacy group that filed the RagingWire Supreme Court brief in 2006, applauded Leno's move. According to ASA chief counsel Joe Elford, who argued Ross's case, "the most significant discrimination against patients, aside from routine harassment by police, occurs in the arena of employment and pre-employment practices."

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