Medical marijuana cards do not offer legal exemption to job applicants

August 09, 2010

Dave Morrill, Contra Costa Times

If Robert Bendula had his way, he would be working within the Department of Justice, but that's easier said than done. After a work accident in 1994, Bendula, of Tracy, is now one of about 400,000 Californians who have medical marijuana cards. For Bendula, he smokes between 3 and 5 grams of pot a day to help alleviate his pain.

It doesn't, however, change the difficulty of finding a job where drug tests and screenings are required.

The California State Supreme Court has ruled that employers have the right to fire potential or current employees, regardless if they're medical-marijuana patients. Without this ruling, employers would risk violating the Americans with Disabilities Act.

"I want those jobs," said Bendula, who is currently unemployed. "But I can't have them."

The ruling involved Gary Ross, of Sacramento, against his former employer Ragingwire, which fired him after a drug test found marijuana in his system.

"The (stigma) is if you use marijuana, you're a worthless person or a second-class citizen who has no value," Ross said. "If I was taking morphine to alleviate the pain, no one would worry. It was that I was smoking a joint."

Ross was able to get a job with a company that didn't have drug tests, but he said after the publicity of his case surfaced, his new employer told him, "Had I known before I hired you that you were smoking pot, I would not have hired you."

A bill that would have allowed people to be hired if they had medical marijuana cards made it through the state Legislature, but was vetoed by Gov. Arnold Schwarzenegger in 2008. Hope for future changes may rest on who will reside in the governor's mansion next year.

"If we have Jerry Brown as the next governor, I'm sure the issue will be brought to the table again," said Baldwin Lee, of Walnut Creek, who heads law firm Allen Matkins' employment law group in Northern California. "If it's Meg Whitman, she would likely take the same action as Schwarzenegger."

If the legislation had passed before Ross' court case, it's likely the courts would have sided with Ross, said Kris Hermes, spokesman for Oakland-based American for Safe Access.

In November, California voters will vote on the legalization of marijuana, but here, too, there is no protection. Proposition 19, also known as the Regulate, Control and Tax Cannabis Act of 2010, is a state proposition which will be on the Nov. 2 ballot. While it might make the drug more accepted statewide, it won't change the employers rights to fire medical marijuana patients.

Typically the way the drug-testing process works is that after an interview, a job applicant is asked to go to a lab to give a urine sample to a third-party administrator for drug testing.

Once the tests come back, the specimens are sent out to an independent Medical Review Officer for analysis. If there are questions regarding the collections, including traces of marijuana, the officer contacts the candidate for hire and asks relevant questions.

Even though a doctor might recommend marijuana to treat a medical condition, an employer is not required to differentiate the reasons why the drug is present. As long as an employer is in a state that allows marijuana use as a reason not to hire, a patient will be at risk of being denied work.

Hermes says that on a daily basis Americans for Safe Access gets calls from people asking what they can do if they're denied employment, even though they have a medical marijuana card.

"Unfortunately, under the current law the options are very few, and unfortunately we're often telling patients they have little recourse right now as to what they can do," Hermes said.

He says the best option is for people to find businesses that do not give drug tests, which shows the company indirectly "has a tolerant policy towards drug use."

Amie Machado owns a bakery, called Auntie's Edibles, that specializes in products that contain medical cannabis. During the day, she works full time in the banking industry.

Machado said. "For certain positions, I understand the need for drug tests," Machado said. "But as long as I can do my job like everyone else, I think it doesn't matter."

Lee says that he's heard from a lot of employers asking how to deal with the dilemma in regards to medical marijuana.

"It's tough when you have employers who want to do the right thing for an employee, but they also want to protect the rest of the employees if someone is smoking marijuana and driving a forklift," he said.

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