Metropolitan News-Enterprise


Friday, January 25, 2008


Page 1


Justices: Employers Can Fire Workers For Using Medical Marijuana


From Staff and Wire Reports


Employers can fire workers found to have used medical marijuana even if it was legally prescribed under state law, the California Supreme Court held yesterday.

Affirming the decision of the Third District Court of Appeal, the high court held 5-2 that a man who used marijuana to treat chronic pain pursuant to his physician’s recommendation could not state a cause of action for disability-based discrimination under the California Fair Employment and Housing Act or for wrongful termination in violation of public policy after being fired by his employer after failing a drug test because the drug remains illegal under federal law.

Gary Ross, a former systems administrator at Ragingwire Telecommunications, Inc., a small Sacramento telecommunications company, was fired eight days after he started working for the company when a pre-employment drug test required of all new employees revealed the presence of Tetrahydrocannabinol, or THC, the active chemical found in marijuana.

Valid Prescription

Ross, who held a medical marijuana card authorizing him to use the drug to treat a back injury sustained while serving in the U.S. Air Force over 20 years ago, presented the company with evidence of his prescription after the test results returned. The company said it would consult with his physician before making a final decision on Ross’ employment, but went ahead and fired him.

Ross filed suit, arguing that his employer’s refusal to accommodate his use of the drug constituted unlawful discrimination on the basis of disability in violation of the FEHA and a violation of public policy because California’s Compassionate Use Act protected his right to use physician-approved marijuana.

Arguing that medical marijuana users should receive the same workplace protection from discipline as employees with valid painkiller prescriptions, he alleged that he used the drug because no other treatments for his injuries afforded him relief, and that neither his disability nor his marijuana use affected his ability to perform the essential functions of his job.

Federal Prohibition

Ragingwire demurred, arguing that it had not violated the FEHA or public policy because marijuana remains a controlled substance that Ross cannot use under federal law, and because nothing in the Compassionate Use Act requires employers to retain employees who use the drug.

Sacramento Superior Court Judge Joe S. Gray agreed with Ragingwire’s arguments and dismissed the suit, and the Third District Court of Appeal affirmed his decision.

Writing for the majority of the Supreme Court, Justice Kathryn Mickle Werdegar agreed that Ross could not state a cause of action under the FEHA.

 “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,” she wrote. “Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions.”

Werdegar said that Ross’ position “might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug,” but noted that “the act’s effect is not so broad.”

“No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law,” she wrote.

Werdegar similarly rejected Ross’s argument that his firing violated fundamental public policies. She reiterated that the Compassionate Use Act does not speak to employment law, let alone establish “a fundamental public policy requiring employers to accommodate marijuana use by employees” under the FEHA, and stated that the privacy clause of the California Constitution—which protects the right of competent adult patients to determine whether or not to submit to lawful medical treatment—was not implicated by Ragingwire’s decision not to accommodate Ross’ marijuana use.

“To assert that defendant’s refusal to employ plaintiff affects his access to marijuana is merely to restate the argument that the Compassionate Use Act…gives plaintiff a right to use marijuana free of hindrance or inconvenience, enforceable against third parties,” she wrote. “That argument we have already rejected.”

Werdegar was joined in her opinion by Chief Justice Ronald M. George, and Justices Marvin R. Baxter, Ming W. Chin and Carol A. Corrigan.

However, Justice Joyce L. Kennard wrote separately to label the majority’s decision “conspicuously lacking in compassion.”

She said:

“The majority’s holding disrespects the will of California’s voters who, when they enacted the Compassionate Use Act, surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment,” she wrote in dissent.

“[U]nless an employer can demonstrate that an employee’s doctor-approved use of marijuana under the Compassionate Use Act while off duty and away from the jobsite is likely to impair the employer’s business operations in some way, or that the employer has offered another reasonable and effective form of accommodation, the employer’s discharge of the employee is disability discrimination prohibited by the state Fair Employment and Housing Act.”

Nevertheless, Kennard agreed with the majority that “discharging an employee for off-duty, physician-recommended marijuana use will not support a claim of wrongful discharge in violation of public policy.”

Justice Carlos R. Moreno joined Kennard in her concurring and dissenting opinion.

Ragingwire was joined in the case by the Santa Clara Valley Transportation Authority and the Western Electrical Contractors Association Inc. who argued that companies could lose federal contracts and grants if they allowed employees to smoke marijuana.

It was also joined by the conservative nonprofit Pacific Legal Foundation, which contended in a friend-of-the-court filing that employers could also be liable for damage done by impaired workers. The group’s counsel, Deborah J. La Fetra, issued a statement calling the decision “a victory not only for employers, but for workers and customers of companies who want to be assured of a drug-free workplace.”

Robert M. Pattison, who represented Ragingwire, agreed, saying that he was particularly pleased that the court recognized his client’s need to meet its clients’ interests and to comply with government regulations in order to create a secure workplace.

Attorney Joseph D. Elford of the Oakland-based group Americans for Safe Access, which represented Ross, said that the group was “extremely disappointed by the ruling,” but that it remained “confident that there will be a day when medical marijuana patients are not discriminated against in the workplace.”

He said the group will now focus on urging the Legislature to pass a law protecting workers who use medical marijuana. The group estimates that 300,000 Americans use medical marijuana and says it has received hundreds of employee discrimination complaints in California since it began tracking the issue in 2005.

Eleven states have adopted medical-marijuana laws similar to California’s: Alaska, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.

The case is Ross v. Ragingwire Telecommunications, Inc., 08 S.O.S. 553.


Copyright 2008, Metropolitan News Company