Should medicinal pot users get job security?

May 24, 2008

Jim Sanders, Sacramento Bee

Californians gave Gary Ross the legal right to smoke medicinal marijuana at home.

But that didn't keep the Carmichael resident from being fired for doing so.

Ross is at the epicenter of a fight pitting the rights of more than a quarter-million medicinal marijuana users against those of business owners.

"It's insane that someone has to fight so hard to use a medication that a doctor says is best for your treatment," said Ross, 46.

The issue is not whether workers can be stoned on the job – they can't – but whether even trace amounts of doctor-approved pot are grounds for firing.

The California Supreme Court ruled against Ross in January, sparking recent legislation to protect the jobs of medicinal users. The court found that California's medicinal marijuana initiative, passed in 1996, did not address employment.

Since marijuana is illegal under federal law, businesses have the right to fire anyone who tests positive for it, the court ruled.

"An employer may require pre-employment drug tests and take illegal drug use into consideration," the Supreme Court ruled.

Stewart Katz, Ross' attorney, said the ruling essentially forces medicinal pot smokers to choose between work or medication.

Because marijuana can be detected in the system for days or weeks after use, medicinal users can be fired long after any effects are felt, Katz said.

"They shouldn't be rendered second-class citizens," he said. "On a fundamental moral, ethical level, it's just completely wrong."

"It's a medicine, folks," said Ross, a single father of two who now works in park management. "Why can't we take our mind out of the Sixties, move forward and apply the science that's available to us?"

Others argue that forcing businesses to accept medicinal marijuana users could increase the risk of accidents and endanger others.

"That's a liability that our members don't necessarily want to take on," said Marti Fisher, representing the California Chamber of Commerce.

Fisher said employers should be free, as they are now, to decide whether a frequent marijuana user poses an unacceptable risk.

"We really shouldn't be forcing employers to hire illegal drug users," she said.

Ross was fired from his job as lead systems administrator at Sacramento's RagingWire Telecommunications after a company drug test came back positive for cannabis in 2001.

Ross had used marijuana since 1999, at his doctor's recommendation, for treatment of a longtime back injury suffered in the Air Force.

The California Supreme Court ruled that a state law protecting workers with disabilities does not extend to use of illicit drugs.

"No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law," the court said.

Thwarted in courtrooms, Ross' supporters are turning to the Capitol.

"It's a matter of civil rights," said Kris Hermes, spokesman for Americans for Safe Access, which supports medical marijuana.

Assemblyman Mark Leno is pushing legislation to bar discrimination against medicinal pot users in hiring, firing or conditions of employment.

Leno's Assembly Bill 2279 would apply only to workers who are not impaired and who do not consume medicinal marijuana on the job or during work hours. Employers could test for impairment.

The measure also would not protect workers in "safety-sensitive" positions critical to the health and safety of others, such as physicians, police officers or school-bus drivers.

Opposed by Republicans, AB 2279 was rejected by the Assembly last week, receiving 38 of 41 votes required. Democrats then expunged the tally, leaving no record that could hurt lawmakers in an election year. Leno said he plans to bring up the bill again in coming days.

The San Francisco Democrat said voters, by passing Proposition 215, clearly intended that medicinal marijuana users not be punished. "We want people to be able to keep their jobs; we want people to be able to continue to live their lives, free of pain, per their doctor's recommendation," Leno said.

Various business and law enforcement groups oppose AB 2279, including the state narcotics officers, police chiefs and peace officers associations.

The narcotics officers' group contends AB 2279 would allow unscrupulous pot smokers to avoid accountability by paying doctors to recommend marijuana even when it's not truly needed.

"(We) believe that a significant number of 'medical marijuana' recommendations are simply bogus," the narcotics officers association wrote.

Forcing employers to accept an admitted marijuana user could increase the odds of an oversight in which an impaired worker goes undetected, Fisher said.

"You can't watch them (continuously) to make sure they haven't stepped out and consumed," she said.

Opponents say AB 2279 could harm drug-free workplace policies, hike insurance rates and reduce prospects to obtain federal contracts.

"The liability potential is huge," said Assembyman John Benoit, R-Palm Desert.

Leno disagrees, arguing that his bill does not apply to anyone under the influence and that there is no statistical evidence that medicinal marijuana has harmed workplaces.

Katz, Ross' attorney, said employees are not threatened with dismissal for consuming other doctor-prescribed medications in the privacy of their homes – why marijuana?

Rather than increase risk, medicinal marijuana could reduce it, Katz said.

"I would think there would be more of a danger, frankly, from people who were in constant pain," he said.

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