CALIF. FIRMS CAN FIRE MEDICAL MARIJUANA USERS

State's High Court Finds Compassionate Use Act Does Not Affect
Employers' Rights

LOS ANGELES -- The California Supreme Court ruled Thursday that
employers can fire workers who test positive for marijuana even if
they have a note from a doctor recommending its use for medical reasons.

The 5 to 2 ruling came in a state that was the first to legalize
cannabis for medical use but has followed up with ambiguity and
ambivalence about making it a reality.

In the latest ruling, the high court said a Sacramento company had
the right to fire Gary Ross in 2001 after a routine drug test came
back positive for marijuana. Ross showed RagingWire Inc. a copy of
his physician's recommendation to smoke the drug to relieve chronic
back pain from three lumbar vertebrae fractured when he fell off the
wing of an F-16 as an Air Force mechanic in 1983.

"From 1999 when my doctor started recommending medical marijuana, I
can stop that spasm from getting into a knot and I don't need any
pain medication," said Ross, adding he smokes only when he
experiences spasms. "Prior to 1999 I was carted off in an ambulance a
half a dozen times. Since 1999, only once."

But the company fired him, arguing that drug use was illegal under federal law.

"What are they supposed to do?" said Deborah La Fetra of the Pacific
Legal Foundation, which filed a brief supporting the company.
"Employers are held liable all the time when drunk or stoned
employees cause trouble, either in the workplace or driving home.
That's one of the reasons why the drug-free workplace is so important."

The high court largely agreed. "No state law could completely
legalize marijuana for medical purposes because the drug remains
illegal under federal law, even for medical users," Justice Kathryn
Werdegar wrote for the majority.

"Nothing in the text or history of the Compassionate Use Act suggests
the voters intended the measure to address the respective rights and
obligations of employers and employees."

Advocates argued that the state legislature did exactly that,
however, when it mentioned the workplace in the 2004 law refining the
historic ballot initiative passed by voters in 1996.

In a friend-of-the-court brief filed in support of Ross, five current
and former lawmakers quoted statutory language stating that employers
were not obliged to tolerate marijuana use on the job. The lawmakers
said that amounted to an implicit statement that people who used
marijuana medically would, in fact, be expected to have jobs.

Assemblyman Mark Leno (D-San Francisco) immediately announced he
would introduce legislation to make the right explicit.

"It really has less to do with whether someone is intoxicated at work
than it has to do with the ability of someone to medicate themselves
away from work and not during working hours," said Kris Hermes,
spokesman for Americans for Safe Access, the Oakland advocacy group
that represented Ross.

Said Ross: "What we're fighting here is the stigma of the history of
the '60s against the elderly generation that's in power."

Part of the confusion in California stems from blurring distinctions
between criminal and civil law covering the workplace. The majority
opinion noted that Californians voted only to decriminalize marijuana
use, saying that "the voters were entitled to change the criminal law
without also speaking to employment law."

But while federal criminal law still bars marijuana across the board,
employers would not necessarily run afoul of federal law by employing
people who use marijuana away from work, said Noel Ragsdale, an
expert on employment law at the University of Southern California.

Ragsdale said the 1988 federal drug-free workplace act requires
employers to certify that they have a policy against employees
abusing drugs in the workplace. "That, I think, is not implicated in
a situation where someone is taking medical marijuana at home and
then coming to work," she said

Hermes said technology exists to test employees not simply for
evidence of having taken marijuana, but for levels that would
indicate whether they are impaired while on the job.

"I don't think the new technology is cheap," he conceded.

The ruling stands to affect some 200,000 Californians estimated to
use marijuana under the recommendation of healers.

"They have an impossible choice, just as the defense says: You can
live with excruciating pain, and work. Or you can get relief the act
says you can get, and not work," Ragsdale said.

"It's a real visceral blow to any kind of real ability to realize the
benefits of that Compassionate Use Act."