JUSTICES: EMPLOYERS CAN FIRE WORKERS FOR USING MEDICAL MARIJUANA

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.