Pubdate: Tue, 8 Jul 2008
Source: Hanford Sentinel, The (CA)
Copyright: 2008 Lee Newspapers
Author: Thomas Elias
Bookmark: (Marijuana - Medicinal)
Bookmark: (Drug Testing)


It is almost certain that the 56 percent of California voters who
approved Proposition 215 in an attempt to legalize medical use of
marijuana did not intend for employers to discriminate against persons
who take advantage of the law they passed.

As it has evolved since passage, the 1996 initiative lets cities and
counties issue medipot usage cards to users who smoke the weed to ward
off pain caused by ailments from migraine headaches to a wide variety
of cancers. Where they exist, the cards can only be obtained with a
doctor's recommendation.

With that background, the question before the state Supreme Court
earlier this year was whether an employer can fire a worker for using
medical marijuana with a doctor's recommendation.

Given that court's longtime background as a bastion of civil
liberties, most recently seen in a gay marriage decision very much in
line with its tradition of ensuring Californians have even more rights
than the U.S. Constitution guarantees, the answer was surprising.

Yes, the court said, a worker can be fired for using medipot with a
doctor's permission even if that use has zero effect on his or her job

"The Compassionate Use Act (Proposition 215) does not eliminate
marijuana's potential for abuse or the employer's legitimate interest
in whether an employee uses the drug," said the 5-2 majority opinion
written by Justice Kathryn Mickle Werdegar. She somehow thought she
was backing up that statement by adding that "Under California law, an
employer may require pre-employment drug tests and take illegal drug
use into consideration in making employment decisions." What about
legal drug use, as defined by California voters?

The case itself was totally new judicial ground. Because California
and only a few other states have okayed any form of legal medical
marijuana use, no similar case has reached the U.S. Supreme Court, the
only venue whose decisions form a binding precedent for the top state

It's clear the court majority reacted with a knee-jerk against any
kind of pot use.

That's essentially what dissenting Justices Joyce L. Kennard and
Carlos Moreno said in their minority opinion. The court ruling
"renders illusory the law's promise that responsible use of marijuana"
will not be penalized, they said.

In this case, neither employer RagingWire Communications of Sacramento
nor anyone else ever claimed that computer technician Gary Ross was
less than competent during the 11 days he worked there.

Rather, company lawyers said the firm feared it might be subject to
federal raids if Ross stayed. Federal agents have staged hundreds of
raids on city-or county-sanctioned medical marijuana clinics and
arrested many medipot growers. But never on those who employ users.

Prosecutors maintain federal laws making all uses of pot illegal trump
the state initiative and any local ordinance designed to make it work.
The U.S. Supreme Court agreed in 2005, ruling Proposition 215 does not
exempt medical marijuana users from prosecution, no matter how severe
their illness.

So when a standard pre-employment test detected Ross' pot use, the
state's high court said, RagingWire was free to bounce him even though
he had shown his medipot card prior to the drug test.

When Ross sued, the company responded that it would "arguably be
complicit in an activity that's illegal under federal law" and might
lose federal contracts if it kept Ross.

All this left medipot activists frustrated until the state Assembly in
late May passed a bill essentially revoking the court decision. This
putative law would let medipot patients work, like anyone else. But
they could not smoke on the job.

Yet to be determined is whether the state Senate will go along. If it
does, Gov. Arnold Schwarzenegger -- an admitted pot smoker with no
medical justification during his bodybuilding and movie days - would
have to be a complete hypocrite to veto it.

If that law doesn't pass, the message delivered by several medical
marijuana backers at a news conference just after the court decision
came down will stand. "People are going to endure pain and suffering
because Supreme Court justices don't feel marijuana has any medical
value. It doesn't matter what citizens and patients say. It doesn't
matter what doctors say."

What's more, the dissenting justices were absolutely correct in saying
the decision, if it stands, means medipot users can be punished for
trying to kill their pain. They would then continue to face what
Kennard called a "cruel choice" between losing their jobs or giving up
the only medication that provides significant comfort in coping with
some illnesses and with cancer chemotherapy.

The ruling also opens up other problems for patients who use legal
narcotics like morphine for pain. They, too, could fail a drug test,
get fired and have no legal recourse. For if employees can be dumped
for using one drug, who's to say they can't also be fired for using
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MAP posted-by: Richard Lake