Pubdate: Fri, 25 Jan 2008
Source: Sacramento Bee (CA)
Page: A1
Copyright: 2008 The Sacramento Bee
Note: Does not publish letters from outside its circulation area.
Author: Crystal Carreon
Bookmark: (Cannabis - California)
Bookmark: (Cannabis - Medicinal)


Despite 1996 State Law, Employers Can Fire Those Who Flunk Drug Test.

In the latest blow to medical marijuana rights, the California 
Supreme Court ruled Thursday that employers can fire workers who test 
positive for the drug, even when it is used under a physician's advice.

The decision immediately spurred calls by activists and lawmakers for 
the overhaul of the state's medical marijuana law voters passed more 
than a decade ago.

But business leaders welcomed the court's position.

"We think this protects employers and the safety of employees in the 
workplace," said Denise Davis of the California Chamber of Commerce.

By a 5-2 vote in a case that began in Sacramento, the court ruled 
that the state's Compassionate Use Act of 1996 does not extend rights 
of medical marijuana users to the work force.

Writing for the majority opinion, Justice Kathryn Mickle Werdegar 
acknowledged that state law protects medical marijuana users from 
criminal liability, but said the letter of the initiative never 
addressed workplace rights - an issue further complicated because 
marijuana use is illegal under federal law.

"Nothing in the text or history of the Compassionate Use Act suggests 
the voters intended the measure to address the respective rights and 
duties of employers and employees," Werdegar wrote in the 15-page 
opinion. "Under California law, an employer may require 
pre-employment drug tests and take illegal drug use into 
consideration in making employment decisions."

The court's decision involved a civil claim by Carmichael resident 
Gary Ross, 45, who lost his job as a lead systems administrator at 
RagingWire Telecommunications Inc. in Sacramento in 2001.

Ross has used marijuana under a physician's recommendation since 1999 
to treat a longtime back injury he sustained while in the Air Force.

At the time of his job application, Ross told RagingWire about his 
marijuana use and believed he was protected under the state's Fair 
Employment and Housing Act because he used the drug to treat a 
disability. He was fired just days after a company drug test came 
back positive for cannabis.

Ross said Thursday that he never expected to win this "test case," 
but felt he had exposed the state's weak position in the 
controversial drug debate.

"This shows the heavy-handedness of the federal government," Ross 
said. "Where is the sovereignty in California? What did the state get 
in passing Proposition 215? A bunch of unemployable people?"

Despite California's passage of the medical marijuana measure, 
federal law prohibits use of the drug and the federal government has 
moved aggressively to shut down medical marijuana dispensaries in the state.

Ross' attorneys, Stewart Katz of Sacramento and Bay Area attorney 
Joseph Elford, said Thursday's ruling further weakens marijuana 
patients' rights.

"It now puts medical marijuana patients at the whim of their 
employers," said Elford, chief counsel with Americans for Safe 
Access, an Oakland-based advocacy group. "I think it will force 
medical marijuana users, who were promised the right to use ... to go 
underground, to take any lengths to avoid a positive drug test."

RagingWire's attorney, Robert M. Pattison of San Francisco, had 
argued before the Supreme Court that employers, by allowing medical 
pot use, would inevitably make themselves vulnerable to disruptive 
searches by federal authorities because the state's law continues to 
run afoul of the federal Controlled Substances Act.

Pattison, supported by several briefs from groups that included the 
Sacramento-based Pacific Legal Foundation, said drug use results in 
increased absenteeism from work, diminished productivity and greater 
health care costs - all legitimate considerations, the court ruled, 
for employers looking at job applicants.

Employers, Pattison said, could also be held accountable for safety 
violations and could lose government contracts by violating the 
state's Drug-Free Workplace Act of 1990.

"RagingWire was not on a campaign here," Pattison said Thursday. 
"RagingWire wanted to make sure it was providing secure services for 
its customers and for the government, and provided a safe work environment.

"We're not saying you can't use marijuana. We're just saying we don't 
have to employ you."

In a statement from RagingWire on Thursday evening, spokesman Reed 
Smith said the company's work - handling valuable data and computer 
needs - mandates that employees pass "stringent qualification 
requirements" to ensure a safe and secure workplace.

But in the dissenting opinion, Justice Joyce L. Kennard said the 
ruling "disrespects the will of California's voters" who passed the 
law never intending that it would affect the employment of medicinal 
marijuana users.

Kennard, supported by Justice Carlos R. Moreno, likened marijuana to 
other prescription drugs, including Vicodin, Ritalin and Valium, and 
reiterated that Ross' use was not during company hours or on company property.

The majority opinion, Kennard said, seriously compromised the 
Compassionate Use Act.

"The ... decision leaves many Californians with serious illnesses 
just two options: continue receiving benefits of marijuana use ... 
and become unemployed ... or continue in their employment, 
discontinue marijuana treatment, and try to endure their chronic 
pain," Kennard wrote. "Surely this cruel choice is not what 
California voters intended."

Assemblyman Mark Leno, D-San Francisco, said he plans to introduce 
legislation to make it illegal for employers to fire or refuse to 
hire medical marijuana users over a drug test.

The court's ruling, he said, "gutted" the intention of the 
Compassionate Use Act, or Proposition 215.

"Following the court's logic, you have to believe that only 
unemployable people would benefit from Proposition 215, and that 
makes no sense," Leno said. "The people of California did not intend 
for patients of medical marijuana to be unemployed."

More than 55 percent of California voters passed the initiative in 
1996 - the first such medical marijuana law in the country.

Eleven other states have since passed similar legislation based on 
California's Compassionate Use Act.
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MAP posted-by: Jay Bergstrom