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Firing of pot user is upheld

Patients who use marijuana under doctor's care can be dismissed, state Supreme Court rules.

January 25, 2008|Maura Dolan | Times Staff Writer

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.

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