MEDICAL MARIJUANA LAW IS CITED IN BID TO REVERSE DISMISSAL BY AN EMPLOYER

In the latest test of California's medical marijuana law, the state
Supreme Court on Tuesday used the experience of a Sacramento man to
question whether employers can fire workers who test positive for the
drug used under a doctor's advice.

For about an hour, justices engaged attorneys at the Stanley Mosk
Library and Court Building near the Capitol on the letter and
intention of the state's Compassionate Use Act of 1996. The act - the
first such law in the country - protects medical marijuana users from
criminal liability but has left unresolved other key questions,
including rights in the work force.

The case heard on Tuesday centered on the 2001 firing of Gary Ross
from RagingWire Telecommunications Inc. in Sacramento and seeks to
answer the labor rights questions for the first time.

"It's extremely significant; it's probably not only the most
important medical marijuana case in California, but in the nation
right now," said Kris Hermes, spokesman for Americans for Safe
Access, an Oakland-based advocacy group that petitioned the Supreme
Court to hear the Ross case. "It's a question of civil rights."

But for attorneys representing business interests in general and
RagingWire in particular, the case is also a matter of an employer's
right to refuse to hire anyone who violates federal drug laws.

Ross, 45, a former lead systems administrator, had lost his job at
RagingWire days after he tested positive for marijuana. At the time,
Ross was under a physician's recommendation to use the drug in
accordance with the state's Compassionate Use Act, and had notified
his workplace of his medical use.

He said marijuana was the only drug that provided relief for lower
back strain and muscle spasms he had suffered since an injury in the
early 1980s while in the U.S. Air Force.

After his termination, Ross filed a civil claim against RagingWire,
alleging the firm violated the Fair Employment and Housing Act and
discriminated against him based on his medical need to use marijuana.

In court on Tuesday, six of the justices peppered attorneys from both
sides with questions that highlighted the contradictions between
federal and state laws on marijuana use for medical purposes.

California's law, which has survived two U.S. Supreme Court reviews,
runs afoul of the federal Controlled Substances Act - a fact that
RagingWire's attorney Robert M. Pattison of San Francisco mentioned
repeatedly before the court.

Pattison said that if marijuana use is allowed, employers could still
be vulnerable to disruptive searches by federal authorities. He also
echoed many of the arguments of the state's 3rd District Court of
Appeal, which ruled against Ross in 2005, saying that drug use
results in increased absenteeism from work, diminished productivity
and greater health care costs - all legitimate considerations for an
employer weighing a job applicant.

"He's still free to do those things," Pattison said of Ross' pot use.
"But if he does, we're not obligated to employ him."

Justice Joyce L. Kennard said the issues before the court do not
simply weigh the use of "illegal drugs." "Under California's
Compassionate Use Act, this particular use ... is allowed," she said.
"What we have is a conflict."

Ross' attorneys, Stewart Katz of Sacramento and Joseph Elford of San
Francisco, said the Fair Employment and Housing Act requires
employers to make "reasonable accommodations" for employees with
disabilities, and argued that Ross' use of marijuana was part of a
medical treatment for his disability.

They said his use did not interfere with his job performance, and it
was clear that users of medical marijuana were not to use the drug
during work hours on the job site.

Outside of court, Elford cautioned that a ruling against Ross could
relegate medical marijuana users to second-class citizens in
California, unable to find or keep their jobs in the face of positive
drug tests.

"If he doesn't have civil rights in employment," Elford said, "then,
he doesn't have civil rights at all."

Ross, dressed in a dark suit, said he works as a camp supervisor in Sacramento.

He said he hopes to one day return to a technically based career,
after the years-long litigation is resolved.

On the courthouse steps after the hearing, Ross said it was never his
intention to be the "test subject" in California's marijuana debate
but is hopeful the court will protect the rights of those in the work
force who rely on medicinal marijuana.

San Francisco activist Dennis Peron is one of the authors of the
Compassionate Use Act, which has been used as a model in 11 other
states. He said his first priority at the time was to protect the
sick from being incarcerated, but added the law should also protect workers.

Peron said that in 1996, he never imagined drug testing would become
so prevalent and, as a consequence, jeopardize the rights of
employable users of medical marijuana.

"One little detail was left out" in the law's language, Peron said.
"We certainly didn't figure this would be the final word."

The Supreme Court will issue a decision within 90 days.