Newshawk: LTE How-To www.safeaccessnow.org/article.php?id=310

Pubdate: Sun, 2 Dec 2007

Source: San Francisco Chronicle (CA)

Page: D - 1

Copyright: 2007 Hearst Communications Inc.

Contact: letters@sfchronicle.com

Website: http://www.sfgate.com/chronicle/

Details: http://www.mapinc.org/media/388

Author: Joseph Elford

 

EMPLOYER CAN'T BREACH MEDICAL MARIJUANA PATIENT'S RIGHTS

 

Gary Ross is a 45-year-old veteran living in Carmichael, near 

Sacramento, and until 2001, the mild-mannered father of two had been 

leading a productive life as a computer systems administrator, 

notwithstanding his chronic pain and spasms from a back injury 

sustained in 1983, while in the Air Force.

 

But Ross' life took an unfortunate turn for the worse in September 

2001 when his employer, RagingWire Telecommunications, fired him for 

using medical marijuana to treat his debilitating illness.

 

Now Ross finds himself in the whirlwind of a major employment case - 

one that is being closely followed by patients in California and 

across the United States. It's the latest illustration of the tension 

between federal and local authorities around medicinal marijuana. 

California residents legalized it more than a decade ago, and 11 

other states have since followed suit - but that has not stopped the 

feds over the years from raiding pot clubs, even the homes of patients.

 

Conservative groups contend that if workers are allowed to smoke 

medicinal pot, even off the job, employers could be at legal risk if 

something went wrong at the office, not to mention that firms could 

potentially lose valuable federal contracts and grants. But as chief 

counsel for Americans for Safe Access - the medical marijuana 

patients' rights group that argued Ross' case before the California 

Supreme Court on Nov. 6 - I can assure you that these contentions are 

legally meritless. Furthermore, state lawmakers never intended to 

deny basic job rights for medical marijuana patients.

 

Many patients have experienced a plight similar to that of Gary Ross. 

Since it began recording instances of employment discrimination in 

2005, the Oakland-based Americans for Safe Access has received 

hundreds of such reports from California in which employers have 

fired patients from their job, threatened them with termination, or 

denied them employment because of a positive test for marijuana.

 

Until 1999, Ross used a regimen of pain medications, including 

Vicodin and muscle relaxants, to treat chronic pain and spasms in his 

lower back. But after years of no success with these medications, 

Ross' physician recommended marijuana to better treat his condition. 

This recommendation, written nearly three years after California 

voters passed the Compassionate Use Act of 1996, made Ross a 

"qualified patient."

 

Since becoming a medical marijuana patient in 1999, Ross continued to 

work successfully as a computer systems administrator, a skill he 

learned in the Air Force.

 

Based on his successful performance with other corporations, Ross was 

offered a position in 2001 as lead systems administrator at 

RagingWire Telecommunications. But just after the Sacramento firm 

offered Ross the job, he was asked to take a drug test, which he 

willingly did. When Ross went to the clinic for the test, he 

presented a copy of his physician's written recommendation to use 

marijuana. Not surprisingly, Ross tested positive for marijuana.

 

After the test, Ross presented a copy of his physician's 

recommendation to the human resources department at RagingWire and 

informed the director that he was a qualified medical marijuana 

patient. RagingWire confirmed Ross' recommendation for marijuana with 

his physician.

 

Yet despite the fact that Ross had performed his job competently over 

the years and his off-duty use of medical marijuana would not impair 

his ability to perform his job in any way, RagingWire fired Gary Ross 

"because of his choice of (medical) treatment." As a result of his 

use of marijuana at home to treat his disability, Ross was left jobless.

 

One year later, in September 2002, Ross took RagingWire to court, 

arguing that qualified medical marijuana patients under California 

law have a right to work free from discrimination. Unfortunately, 

both the Sacramento Superior Court and the Third Appellate District 

Court rejected his argument.

 

In October 2005, with the help of Americans for Safe Access, Ross 

took his case to the California Supreme Court. Multiple "friend of 

the court" briefs were filed on behalf of Ross and the thousands of 

working patients across California.

 

The oral arguments before the California Supreme Court on Nov. 6 

raised two important issues. The first is whether states have the 

sovereign ability to pass laws that seek to protect the health and 

welfare of their people, and protect against disability 

discrimination without interference from the federal government.

 

That question is easily answered - in the context of employment. 

There are no federal Drug-Free Workplace laws that require employers 

to fire workers unless they are found to possess, use or distribute 

illegal drugs at the workplace. Because Ross never conceded to using 

medical marijuana on the job and had never come to work intoxicated, 

the Drug-Free Workplace laws did not apply.

 

The second issue raised in the case is whether patients have a 

privacy right to choose their own medical treatment without the 

employer dictating it.

 

This is largely what the Ross case is about and, ideally, will follow 

the long line of precedent, which states that the California 

Constitution prohibits employers from intruding upon the 

physician-patient relationship and interfering with the health 

decisions made as a result.

 

"I wasn't fired for poor performance or for being a danger to my 

co-workers," Ross said at a recent hearing. "I was fired due to an 

antiquated and unfair company policy on medical marijuana. This 

practice allows employers to undermine state law and the protections 

provided to patients."

 

The progressive employment policies under the State's Fair Employment 

and Housing Act should also play a part in preventing such forms of 

discrimination, and California must continue its leadership role in 

protecting disabled workers.

 

Ross hopes that the state Supreme Court, expected to weigh in this 

February, will overturn the lower court rulings and provide 

much-needed employment discrimination protections for patients. The 

alternative is to treat medical marijuana patients, our most 

vulnerable, as second-class citizens.