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Can employers fire medical pot users?
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The California Supreme Court is considering whether an employee who legally uses medical marijuana can be fired for a positive drug test. One such employee claims that he and others using medical marijuana should receive the same workplace protection from discipline that employees with valid painkiller prescriptions do.
SAN FRANCISCO (Map, News) - When his new boss at Ragingwire Inc. ordered Gary Ross to take a drug test, the recently hired computer tech had no doubt the results would come back positive for marijuana.
But along with his urine sample, Ross submitted a doctor's recommendation that he smoke pot to alleviate back pain - a document he figured would save him from being fired. It didn't, however, and Ross was let go eight days into his tenure because the company said federal law makes marijuana illegal no matter the use.
On Tuesday, the California Supreme Court is due to hear Ross' case, the latest example of the intensifying clash between federal and local authorities over marijuana use.
Ross, 45, contends that Ragingwire discriminated against him because of a back injury and violated the state's fair-employment law by punishing him for legally smoking marijuana at home.
He says he and others using medical marijuana should receive the same workplace protection from discipline that employees with valid painkiller prescriptions do. California voters legalized medicinal marijuana in 1996.
Eleven other states, including Alaska, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington state, have adopted similar laws and many are now grappling with the same sticky, workplace issues over drug use by employees smoking medicinal marijuana approved by doctors.
In Oregon, for instance, two competing bills on the issue died in that state's Legislature this year.
The nonprofit marijuana advocacy group Americans for Safe Access, which is representing Ross, estimates that 300,000 Americans use medical marijuana. The Oakland-based group said it has received hundreds of employee discrimination complaints in California since it first began tracking the issue in 2005.
"It's an extremely widespread problem," said Joe Elford, the group's chief lawyer. At least one other similar workplace lawsuit have been filed in the state, but Elford has been advising the aggrieved to first file complaints with the state's Fair Housing and Employment agency. The agency issues "right-to-sue" letters after investigating complaints, giving a person up to a year to file a lawsuit.
"We're advising everyone to go slow encouraging them to wait for a decision by the Supreme Court," Elford said.
Several national medical organizations and disability rights advocates have filed friend-of-the-court papers urging the Supreme Court to rule in Ross' favor.
Ross, who lives in Sacramento, said he permanently injured his back in 1983 while serving as a U.S. Air Force mechanic. He said it wasn't until 1999 that he found true pain relief with marijuana, though scientists are still split on the drug's effectiveness.
The American Medical Association advocates keeping marijuana classified as a tightly controlled and dangerous drug that should not be legalized until more research is conducted.
"I think I'm standing up for everybody else," Ross said. "My motivation is that I don't like to lose and that medical marijuana is effective."
So far, though, Ross has been losing.
Two lower courts have sided with Ragingwire's decision to fire Ross because federal law holds that marijuana is illegal in all guises.
Five current and former Democratic state legislators who argue that the lower courts misinterpreted a law they helped pass that banned smoking of medicinal marijuana at the workplace. The lawmakers said nothing in their law prevents employees with medical marijuana cards to smoke outside the workplace.
The lawmakers wrote that the state's fair employment law and the 1996 Compassionate Use Act legalizing medicinal marijuana, "authorize and protect the use of medical cannabis by employees away from the workplace and during nonbusiness hours, as exemplified by plaintiff-petitioner Gary Ross, and that the court of appeal's decision erred in concluding otherwise."
Employers are fearful of falling productivity and that they open themselves to the wrath of federal officials, who are armed with a 2005 U.S. Supreme Court decision declaring that state medicinal marijuana laws don't protect users from criminal prosecution.
Ragingwire marketing chief Doug Adams declined to comment on the case.
Ragingwire, a small telecommunications company in Sacramento, has been joined in the Supreme Court by powerful corporate interests such as the Santa Clara Valley Transportation Authority and the Western Electrical Contractors Association Inc., who said companies could lose federal contracts and grants if they allowed employees to smoke pot.
The conservative nonprofit Pacific Legal Foundation said in a friend-of-the court filing that employers could also be liable for damage done by high workers.
"History abounds with cases of employers found liable," the Sacramento-based foundation wrote, "because their employees were driving vehicles, operating heavy equipment or otherwise performing tasks made more dangerous by their being under the influence of alcohol or drugs."
Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Comments from Examiner Readers
1:00 PM MST on Wed., Mar. 12, 2008 re: "Pot-growing woman, 60, reports to prison"
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Examiner Reader said:
Regardless if many prescriptions are not legitimate, neither are the majority of opiate derived painkillers taken in the US. What people need to realize is that even if you don't support marijuana, this is our freedom at stake, with the federal government undermining our authority every day. You people who disagree are the same people who so willingly vote your human rights away one piece at a time. The fact of the matter is that pot is safer than alcohol in terms of physical and psychological health, and any doctor with any familiarity with the pharmacokinetics involved in THC will agree. Too bad the media/government mindset soaks into the fickle brains of those who are unable to accurately think for themselves. I feel terribly sorry for this woman.
9 agree | 5 disagree
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Examiner Reader said:
So these drug selling thieves are collecting taxes from their customers and they don't have to pay anyone. They already charge an outrageous amount for the dope they sell make huge profits and now when the state and city needs monies - they don't have to pay? Effing please. Excuse me Feds, what happened to the letters to the landlords? Shouldn't these places all be closed by now?
5 agree | 5 disagree
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Examiner Reader said:
Yea, this is a good idea. Someone stoned on dope while running a backhoe with co-workers in a hole next to the bucket. One wrong move could crush them. Or a cop on medical marijuana with his gun drawn. People high at work is a really good idea.....NOT!!!!
29 agree | 30 disagree
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m.s. jackson said:
an observation: ...tim is not the only person from another incomprehensible dimension (dement-shun?), who reads the Examiner. After all at least 61 were able to understand the psychobabble well enough to agree and another 66 who were able to disagree with the non-statement. There does seem to be a connection in that mess with illegal aliens and medical marijuana. Unless Martians have landed in Humboldt county I don't think the word "aliens" applies. But, like I said, incomprehensible.
68 agree | 95 disagree
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m.s. jackson said:
Testing positive for medicinal marijuana use does not mean the person is high while at work. Considering how many people I have worked with who are obviously high on their antidepressants/psychotics/whatevers (can they get any more manic or wierd?) I would almost prefer a stoner who can be depended upon to have the same, if somewhat slow, personality on a daily basis. And what is more dangerous at work than someone with a major, or even minor, hangover? Hypocrites unite!
64 agree | 68 disagree
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Examiner Reader said:
That is ridiculous the companies would say they could be held liable if a "high" worker is injured, or injuries someone else. Did they READ the actual law? If an employee is "high" while at work, that employee is in direct VIOLATION of the law, thus the EMPLOYEE not EMPLOYER is held liable. The law allows for medical marijuana to be used during NON-work hours and AT HOME, NOT AT WORK. The argument is undeniably flawed, and completely inaccurate. I hope they get called on their complete misinterpretation of the law passed by voters!
168 agree | 148 disagree
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Examiner Reader said:
maybe if so many people, esp. in this town, who lie about their "need" for medical pot and are just smoking it to have a good time wold stop it, then legitimate users would not get screwed. Come on I see those ads in the papers they are night clubs not medical offices and "Doc 420" will give you a script for no reason. Smoke on that, losers.
166 agree | 152 disagree
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Examiner Reader said:
It goes to show how scared the politicos of losing their drug money from the pharmacuetical companies that kill thousands each week while a safe and effective herb is used to get more money for a failed drug war. Rumsfeld profitted mightily from Vioxx and the bird flu vaccines that were never used. Let this drug lord do his time for the death of innocent Americans.
146 agree | 139 disagree
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William Cooke said:
Yet another reason to impeach Bush and to vote for Ron Paul! This is a disgrace!
165 agree | 159 disagree
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