Fate of Medical Marijuana Patients' Right to Work Rests with the California Supreme Court

November 10, 2007 | Kris Hermes

Analysis of oral arguments before the California Supreme Court in Ross v. RagingWire on 6 November 2007 Unfortunately, I was not able to attend Tuesday's oral arguments before the California Supreme Court (CSC) on whether employers like RagingWire Telecommunications, Inc. have the right to discriminate against medical marijuana patients like Gary Ross. At the time the CSC granted review in November 2006, I was the Legal Campaign Director at Americans for Safe Access (ASA). Without a doubt, it was a proud day for me and everyone else at ASA to have this case finally get heard. I was equally excited, in my new role as Media Liaison at ASA, to see the extent of news coverage on this important issue, with articles in AP, SF Chronicle, Sacramento Bee, The Recorder, and FindLaw. When I viewed the oral arguments after the fact, on the California Channel, which ran a live feed from the courtroom, I was left with much optimism for a ruling that favors Ross's struggle to be free from discrimination. The three areas I felt the court focused on most were: whether RagingWire, the employer, would be unreasonably inconvenienced to be required to hire or continue to employ medical marijuana patients; whether federal law somehow prevented RagingWire from hiring or continuing to employ medical marijuana patients; and whether the People of California or the State Legislature intended to exclude medical marijuana patients from the workforce. It was my impression that ASA Chief Counsel Joe Elford and attorney Stewart Katz, each acting as co-counsel arguing before the court, nailed each of those issues extremely well, while opposing counsel for RagingWire foundered and failed to provide solid responses to the court. I will attempt to detail each of the three issues below. Regarding unreasonable inconvenience, Elford rightly claimed that concerns over unlikely interference by federal law enforcement at the workplace, or elsewhere, did not rise to the level of needing to carve out a large exception to the Fair Employment and Housing Act (FEHA) simply to allow employers to discriminate in this way. Nor did it rise to the level of forcing more than 200,000 medical marijuana patients in California from the workplace and denying them a right to thrive. Elford also points out that some of the existing accommodations required of employers by FEHA (he used the example of ramps for wheelchair-bound workers) far surpass any inconvenience that might be posed by accommodating the productive employment of medical marijuana patients. The Compassionate Use Act (or Proposition 215) is pretty clear in conferring "the right" to "seriously ill Californians" to "obtain and use marijuana for medical purposes." To have any meaning, this "right" must not prevent patients from earning a living. Regarding the issue of supposed state-federal conflict, it was amply answered that there is none. By granting Ross, who is a productive, disabled veteran, the same right to work as others in his field, the employer is in no way violating federal law. The Drug-Free Workplace laws pertain only to on-the-job intoxication, possession, or distribution of illegal substances. As offensive as many drug-testing requirements are, the federal government never meant Drug-Free Workplace laws to reach into the homes of productive workers. The specter of losing federal contracts is also a red herring, since such forms of punishment absent of wrongdoing (under state or federal law) by the worker(s) and employer would be unjustified and arguably illegal. Regarding the intent of the legislature, Ross wins hands down. The fact that the California Legislature only implied the right to work by indicating that employers need not accommodate on-the-job medical marijuana use compelled the court to ask multiple questions on the matter. That the legislature made note of employment in the Medical Marijuana Program Act but failed to provide employers with a blanket right to discriminate against patients speaks volumes to their right to work. However, we don't even need to go there. There should be no question as to the intent of the legislature, since an amicus 'friend of the court' brief was filed by all five of the original co-authors detailing their intent to provide medical marijuana patients the same discrimination-free opportunities as other productive workers in California. The CSC will decide this case on or before February 5, 2008. The livelihood of literally hundreds of thousands of patients is now in the delicate hands of the court. However, regardless of the outcome, the strong conviction of a majority of Californians voters and a legislature that endorsed the rights of medical marijuana patients will continue to compel us to strive for justice. For more information, see ASA's web page on the Ross v. RagingWire case, which is also located on ASA's Brief Bank page.