MEDICAL MARIJUANA CARDS DO NOT OFFER LEGAL EXEMPTION TO JOB
APPLICANTS

If Robert Bendula had his way, he would be working within the
Department of Justice, but that's easier said than done.

After a work accident in 1994, Bendula, of Tracy, is now one of about
400,000 Californians who have medical marijuana cards. For Bendula, he
smokes between 3 and 5 grams of pot a day to help alleviate his pain.

It doesn't, however, change the difficulty of finding a job where drug
tests and screenings are required.

The California State Supreme Court has ruled that employers have the
right to fire potential or current employees, regardless if they're
medical-marijuana patients. Without this ruling, employers would risk
violating the Americans with Disabilities Act.

"I want those jobs," said Bendula, who is currently unemployed. "But I
can't have them."

The ruling involved Gary Ross, of Sacramento, against his former
employer Ragingwire, which fired him after a drug test found marijuana
in his system.

"The (stigma) is if you use marijuana, you're a worthless person or a
second-class citizen who has no value," Ross said. "If I was taking
morphine to alleviate the pain, no one would worry. It was that I was
smoking a joint."

Ross was able to get a job with a company that didn't have drug tests,
but he said after the publicity of his case surfaced, his new employer
told him, "Had I known before I hired you that you were smoking pot, I
would not have hired you."

A bill that would have allowed people to be hired if they had medical
marijuana cards made it through the state Legislature, but was vetoed
by Gov. Arnold Schwarzenegger in 2008. Hope for future changes may
rest on who will reside in the governor's mansion next year.

"If we have Jerry Brown as the next governor, I'm sure the issue will
be brought to the table again," said Baldwin Lee, of Walnut Creek, who
heads law firm Allen Matkins' employment law group in Northern
California. "If it's Meg Whitman, she would likely take the same
action as Schwarzenegger."

If the legislation had passed before Ross' court case, it's likely the
courts would have sided with Ross, said Kris Hermes, spokesman for
Oakland-based American for Safe Access.

In November, California voters will vote on the legalization of
marijuana, but here, too, there is no protection. Proposition 19, also
known as the Regulate, Control and Tax Cannabis Act of 2010, is a
state proposition which will be on the Nov. 2 ballot. While it might
make the drug more accepted statewide, it won't change the employers
rights to fire medical marijuana patients.

Typically the way the drug-testing process works is that after an
interview, a job applicant is asked to go to a lab to give a urine
sample to a third-party administrator for drug testing.

Once the tests come back, the specimens are sent out to an independent
Medical Review Officer for analysis. If there are questions regarding
the collections, including traces of marijuana, the officer contacts
the candidate for hire and asks relevant questions.

Even though a doctor might recommend marijuana to treat a medical
condition, an employer is not required to differentiate the reasons
why the drug is present. As long as an employer is in a state that
allows marijuana use as a reason not to hire, a patient will be at
risk of being denied work.

Hermes says that on a daily basis Americans for Safe Access gets calls
from people asking what they can do if they're denied employment, even
though they have a medical marijuana card.

"Unfortunately, under the current law the options are very few, and
unfortunately we're often telling patients they have little recourse
right now as to what they can do," Hermes said.

He says the best option is for people to find businesses that do not
give drug tests, which shows the company indirectly "has a tolerant
policy towards drug use."

Amie Machado owns a bakery, called Auntie's Edibles, that specializes
in products that contain medical cannabis. During the day, she works
full time in the banking industry.

Machado said. "For certain positions, I understand the need for drug
tests," Machado said. "But as long as I can do my job like everyone
else, I think it doesn't matter."

Lee says that he's heard from a lot of employers asking how to deal
with the dilemma in regards to medical marijuana.

"It's tough when you have employers who want to do the right thing for
an employee, but they also want to protect the rest of the employees
if someone is smoking marijuana and driving a forklift," he said.