COMPANY CAN FIRE MEDICAL POT USER, COURT RULES

SAN FRANCISCO -- The state Supreme Court poked another hole in
California's medical marijuana law Thursday, ruling that the
voter-approved measure doesn't protect users from being fired for
testing positive for the drug at work.

In a 5-2 decision, the court said the 1996 initiative, Proposition
215, exempted medical marijuana patients and their caregivers from
state prosecution, but didn't limit an employer's authority to fire
workers for violating federal drug laws.

"We have no reason to conclude the voters intended to speak so
broadly, and in a context so far removed from the criminal law, as to
require employers to accommodate marijuana use," Justice Kathryn
Mickle Werdegar said in the majority opinion.

Dissenting Justice Joyce Kennard said the voters never intended to
subject medical marijuana users to the "cruel choice" of forgoing
their medication or losing their jobs. A state lawmaker spoke in
similar terms later in the day in announcing legislation that would
overturn the ruling.

"The people of California did not intend that patients be unemployed
in order to use medical marijuana," said Assemblyman Mark Leno, D-San
Francisco.

He said he would introduce a bill in a few weeks that would protect
employees from being fired for off-the-job marijuana use that had
been recommended by a doctor for pain or illness. Leno said the
legislation would not allow employees to possess or use the drug at work.

He said he is optimistic the Legislature will pass such a bill but is
uncertain whether Gov. Arnold Schwarzenegger would sign it. The
governor's office declined to comment.

Schwarzenegger endorsed medical marijuana during the 2003 recall
campaign that put him in office, but he has also been receptive to
the concerns of businesses, which are likely to oppose any
legislation restricting their ability to fire drug users.

Prop. 215, which made California the first of a dozen states to
legalize medical marijuana, has been weakened in a series of
conflicts with federal laws, which prohibit the possession,
cultivation or distribution of marijuana and declare that the drug
has no legitimate use.

The U.S. Supreme Court has upheld the federal government's authority
to shut state-approved medical marijuana dispensaries in California
and prosecute patients and their suppliers under federal law.

Thursday's case involved Gary Ross, a 45-year-old computer technician
who was fired by a Sacramento firm for testing positive for marijuana
despite a doctor's note saying he needed the drug to combat back
spasms that cause severe pain.

Ross, according to his lawsuit, injured his back while in the Air
Force in 1983 and could find no relief from the spasms until 1999,
when his doctor recommended marijuana.

He was hired as a computer administrator by RagingWire Communications
in September 2001 and was fired 11 days later for testing positive
for marijuana. Ross said he had never used the drug at work or been
impaired by its effects on the job, and that he had performed his
duties competently.

Nonetheless, the court majority said, neither Prop. 215 nor the
state's disability discrimination law requires employers to allow
workers to use drugs banned by federal law.

Prop. 215 "does not eliminate marijuana's potential for abuse or the
employer's legitimate interest in whether an employee uses the drug,"
Werdegar said. She noted that the initiative did not mention
employment or the workplace and said RagingWire "has not prevented
(Ross) from having access to marijuana."

Kennard, joined in dissent by Justice Carlos Moreno, countered that
the ruling "renders illusory the law's promise that responsible use
of marijuana" will not be penalized.

Ross now manages campgrounds in and around Sacramento, a job that he
said did not require a drug test.

"People are going to endure pain and suffering because Supreme Court
justices don't feel marijuana has medical value," Ross said. "It
doesn't matter what the citizens say. It doesn't matter what the doctors say."

Lawyers on both sides of the case said pre-employment testing for
marijuana is common among California employers, especially those that
have federal contracts and are legally required to keep their
workplaces drug-free.

No surveys have been conducted on the prevalence of testing, but
attorney Joseph Elford of the advocacy group Americans for Safe
Access, who represented Ross, said hundreds of people have called the
organization in its six years of existence with similar complaints.
He said he feared the ruling would prompt more employers to fire
medical marijuana users or refuse to hire them.

Robert Pattison, the lawyer for RagingWire, praised the court for
clearing up the uncertain relationship between Prop. 215 and
workplace discrimination laws, which require employers to offer
reasonable accommodations to employees suffering from disabilities.

The ruling demonstrates, he said, that disability law "doesn't
require California employers to accommodate the use of illegal drugs,
including so-called medical marijuana." Online resources

To read the ruling, go to:

links.sfgate.com/ZCFZ

The case is Ross vs. RagingWire, S138130.