Power to the Workers

April 06, 2011

Jasen T. Davis, Culture Magazine

While many sick people use medical marijuana to deal with their ailments, patients can still be fired for failing a drug test—even if they live in a state that allows the use of cannabis with a doctor’s recommendation. That’s the quandary that led one patient advocacy group, Americans for Safe Access (ASA), to sponsor a bill (SB129) that would protect medical marijuana patients from being harassed at work or losing their job.

Introduced by California Senator Mark Leno (D-San Francisco), the bill’s purpose is to protect patients from “...discrimination in hiring, termination or any term of employment.”

The bill has sensible limitations. For instance, it doesn’t protect cannabis users who work in “safety-sensitive positions” such as firefighters, police officers, ambulance drivers and the like.

SB129 does not allow patients to medicate while at work or allow them to become impaired while on the job. This should be a comfort for those who are concerned about cannabis-influenced bus drivers and surgeons. Obviously, the public’s safety was taken under consideration when the bill was drafted.

What gives the bill teeth is that it allows medical marijuana patients to file a civil lawsuit against an employer in the case of a wrongful termination. If an employee is fired for medicating on the weekend or after work and later fails a drug test, they could sue their the employer if they are a qualified patient with the appropriate recommendation and paperwork.

CULTURE spoke with Kris Hermes, who is on the Legal Advisory Board for Americans for Safe Access and is the legal campaign director for the Oakland-based office for ASA.

How far does the bill go to protect patients? Can a person who smokes marijuana to treat their insomnia be fired if they fail a drug test, even though they are a legal medical patient?

That’s the unfortunate current status of the law. They have virtually no protection from being fired for testing positive if they are a patient. They are not protected from being denied employment. This bill would reverse a court decision, Ross v. Raging Wire Telecommunications, which gave employers the right to take action against employees who used cannabis on the job. The bill was supposed to also give protection to patients. The co-authors filed an amicus brief stating the intent of the legislation, but a later court ruling stated that employers had a right to discriminate against patients.

How does this bill benefit employers?

Arguably, it would focus attention on impairment as opposed to drug testing for the presence of marijuana in the system, which doesn’t get to the problem of impairment. What we are suggesting in the legislation is that impairment testing that reviews a person’s motor-functioning skills at that moment would be a better standard of testing. This bill allows employers to focus on impairment for the purposes of firing an employee, rather than just drug tests. This is important, because any drug, legal or otherwise, can potentially impair a person.

How could this bill potentially hurt medical marijuana patients?

I don’t know how it would hurt them. This bill grants protection to patients who do not work in [public] safety positions like police officers or firemen, but they aren’t protected under the current law right now. Without this bill, patients have no protection whatsoever.

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