Pubdate: Thu, 08 Sep 2005
Source: Metropolitan News-Enterprise (Los Angeles, CA)
Copyright: 2005 Metropolitan News Company
Contact: http://www.metnews.com/lettertoeditor.htm
Website: http://www.metnews.com/
Details: http://www.mapinc.org/media/3326
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Author: Kenneth Ofgang, Staff Writer/Appellate Courts
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)

EMPLOYEE WHO USES "MEDICAL" MARIJUANA MAY BE FIRED

Firing an employee who tests positive for marijuana does not violate
the Fair Employment and Housing Act, even if the employee can show
that he uses marijuana for medicinal purposes under Proposition 215,
the Third District Court of Appeal ruled yesterday.

The court rejected Gary Ross' claim that because the initiative
protects his right to physician-approved marijuana use as treatment
for lower back strain and muscle spasms, his employer's refusal to
accommodate his use of the drug constituted discrimination on the
basis of disability and a violation of public policy.

"Because the possession and use of marijuana is illegal under federal
law, a court has no legitimate authority to=86require an employer to
accommodate an employee's use of marijuana, even if it is for
medicinal purposes and thus legal under California law," Presiding
Justice Arthur Scotland wrote. "If FEHA is to be extended to compel
such an accommodation, that is a public policy decision that must be
made by the Legislature, or by the electorate via initiative, and not
by the courts."

Positive Test

Ross worked as a systems administrator at Ragingwire
Telecommunications, Inc. in Sacramento, but was fired eight days after
starting work as a result of his positive test for THC, the main
chemical found in marijuana. The company said it would consult with
Ross' physician before making a final decision on his employment, but
went ahead and fired him.

In his complaint, Ross alleged that he uses the drug, on his doctor's
recommendation, because other treatments for the injuries he suffered
during military service over 20 years ago have not afforded relief. He
also contended that neither his disability nor his marijuana use
affect his ability to perform the essential functions of the job
Ragingwire hired him to do.

On demurrer, Ragingwire argued that because marijuana is a controlled
substance that Ross cannot use under federal law, and because nothing
in Proposition 215 requires employers to retain employees who use the
drug, there was no violation of FEHA or public policy.

Sacramento Superior Court Judge Joe S. Gray agreed and dismissed the
suit.

Scotland, writing for the Court of Appeal, said Gray was correct.

Proposition 215, the presiding justice explained, "simply permits a
person to use marijuana for medicinal purposes in our state without
incurring state criminal law sanctions" and "says nothing about
protecting the employment rights of those who do so."

The jurist cited the recent ruling of the U.S. Supreme Court that the
federal government may enforce its anti-marijuana laws against
California residents without regard to Proposition 215.

"Plaintiff claims we cannot resort to federal law to resolve his claim
under FEHA, but he refers us to no legal authority supporting the
proposition that he is exempt from federal criminal statutes merely
because he lives in California," Scotland explained.

As long as marijuana possession remains a federal crime, the jurist
went on to say, requiring an employer to tolerate marijuana use as a
disability accommodation would create numerous problems that the
voters could not have intended to create by passing the initiative.

Scotland's Reasoning

For example, Scotland reasoned, if other employees who use prescribed
medication in order to perform their jobs take those drugs at work,
medical marijuana users might be entitled to insist on the same
accommodation. This, in turn, would subject the employer to negative
consequences, including federal raids and the loss of state contracts
under the Drug-Free Workplace Act.

An additional complication, the presiding justice wrote, is that
Proposition 215 requires no more than an oral recommendation by a
physician in order for an employee's marijuana use to be shielded from
state criminal prosecution.

Since the employer would have little means of determining the
legitimacy of the employee's claim that his or her use of the drug is
Proposition 215-protected, "the employer could be put to the Hobson's
choice of either hiring an employee who may be using drugs illegally
and is a substance abuser, or refusing to hire the employee and
risking the expense of a lawsuit alleging discrimination."

The case is Ross v. Ragingwire Telecommunications, Inc., 05 S.O.S.
4364.
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MAP posted-by: Matt Elrod