Friday, January 25, 2008


SAN FRANCISCO -- -- The California Supreme Court weakened the effect

of the state's beleaguered medical marijuana law, ruling Thursday

that employers may fire workers for using physician-recommended

marijuana while off duty, even if it did not hurt their job performance.


Supporters of medical marijuana immediately criticized the court's

5-2 ruling, saying it undermined the 1996 law, which prohibits the

state from criminalizing the medical use of the drug.


Hundreds of medical marijuana users have complained that they have

been fired, threatened with termination or not hired by California

companies because of their drug use, according to one advocacy group.


In siding with employers, the California Supreme Court said the

Compassionate Use Act passed by voters and later amended by the

Legislature imposed no requirements on employers.


"The Compassionate Use Act does not eliminate marijuana's potential

for abuse or the employer's legitimate interest in whether an

employee uses the drug," Justice Kathryn Mickle Werdegar wrote for

the majority.


Justice Joyce L. Kennard called the decision "conspicuously lacking

in compassion."


"The majority's holding disrespects the will of California's voters,"

wrote Kennard, whose dissent was joined by Justice Carlos R. Moreno.


The voters "surely never intended that persons who availed

themselves" of the medical marijuana act "would thereby disqualify

themselves from employment," Kennard said.


Within hours of the court's decision, Assemblyman Mark Leno (D-San

Francisco) announced that he would introduce legislation to prevent

employers from discriminating against medical marijuana users.


"The people of California did not intend that patients be unemployed

in order to use medical marijuana," he said.


The court majority upheld the firing of Gary Ross, an Air Force

veteran whose doctor recommended marijuana for chronic back pain

stemming from an injury in the military and whose disability

qualified him for government benefits.


Ross, 45, was hired by RagingWire Telecommunications Inc. in 2001 as

a systems engineer.


Before taking a required drug test, Ross provided a copy of his

physician's recommendation for marijuana.


The company fired him a week after he started the job because his

test revealed that he had used marijuana.


Ross sued the company on the grounds that it failed to accommodate

his disability as required under a state anti-discrimination law.


He contended that he had worked without any problems at other jobs in

the same field since becoming a medical marijuana user.


Lower courts, however, sided with the employer.


"All I am asking is to be a productive member of society," Ross said

in a written statement. "I was not fired for poor work performance

but for an antiquated policy on medical marijuana."


Stewart Katz, Ross' lawyer, said he was disappointed but not

surprised by the majority's ruling "because of what the political

realities are." He said the ruling could be overturned by a

legislative amendment to the marijuana law.


Ross, who continues to use medical marijuana, is now employed in another field.


His lawyer refused to disclose his current occupation because his

employer "is not terribly tolerant."


Attorney Robert M. Pattison, who represented RagingWire

Telecommunications, a Sacramento data center, said the ruling

resolved questions that have troubled employers about the use of

medical marijuana and did "not at all" eviscerate the marijuana law.


"In fact, the court makes it clear that the point here is the medical

marijuana law doesn't address employment," Pattison said.


California is one of 12 states with medical marijuana laws. At least

one of them, Rhode Island, specifically protects workers from being

fired for their medical use of the drug, said Bruce Mirken of the

Marijuana Policy Project, an advocacy group.


"The court is claiming that California voters intended to permit

medical use of marijuana, but only if you're willing to be unemployed

and on welfare," Mirken said. "That is ridiculous on its face, as

well as cruel."


Joseph D. Elford, chief counsel of Americans for Safe Access, which

argued the case on behalf of Ross, predicted the ruling would spark

an increase in employer sanctions against medical marijuana users.


His group already has reported hundreds of complaints of

discrimination by employers.


Medical marijuana patients may now be forced "to go underground and

to forgo using marijuana before a drug test," he said.


Traces of marijuana can linger in the body for weeks after its use,

long after the patient has stopped using the drug, advocates said.


Ross' lawsuit might have prevailed if the state's law gave marijuana

the same legal status as prescription drugs, the court majority said.


The law could not have done that because the drug remains illegal

under federal law, the majority said.


The two dissenting justices argued that the medical marijuana law

protected patients from criminal prosecution and "sanction," which

would include job termination. They said Ross did not seek to possess

or use marijuana at work.


They also contended that the majority would not have ruled against

Ross if he had been taking other doctor-approved drugs that might

affect work performance, such as Vicodin, Ritalin and Valium, as well

as many over-the-counter cold remedies.


Adam Wolf, an attorney with the American Civil Liberties Union's Drug

Law Reform Project, said at least one part of the ruling should be

welcomed by the medical marijuana movement.


The decision made clear that California could protect medical

marijuana users from job discrimination, despite federal law, if the

Legislature or voters chose to amend the law.


"Let us hope, then, that this ruling serves to silence those who

insist that California must march in lock-step with the federal

government's ill-considered medical marijuana ban," Wolf said.


Although there was no evidence in the case that medical marijuana

impaired Ross from doing his job, many employers, workers and

customers want "a drug-free workplace," said Deborah LaFetra, an

attorney with the Pacific Legal Foundation, a group that advocates

limited government and argued on behalf of the employer in the case.


"Drug-using employees are known to have impaired abilities, both

mental and physical, that can alter their judgment and other

necessary skills for their work," she said.


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MAP posted-by: Jay Bergstrom

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