PATIENTS AIM TO KEEP JOB, USE POT

Oakland group will ask high court to protect medical marijuana users

An Oakland-based advocacy group is taking the medical marijuana
battle deep into the workplace Tuesday by asking the state's highest
court to protect patients not only from prosecution but also from firing.

Americans for Safe Access will file a California Supreme Court brief
Tuesday on behalf of Gary Ross of Sacramento, who was canned in
September 2001 after just a few days on the job at RagingWire
Telecommunications.

"It's fair to say it's been a widespread problem. ... We've
consistently gotten calls in this area essentially since we've been
taking calls," ASA chief counsel Joe Elford said Friday. "Except for
law enforcement encounters, this is the biggest concern facing
medical marijuana patients."

When Ross' pre-employment drug test showed marijuana use, he told
RagingWire he was authorized to use the drug under state law for his
disability: chronic back pain from injuries suffered in 1983 while
serving in the U.S. Air Force. He was fired anyway.

Ross contends being fired for using medical marijuana as state law
permits, and RagingWire's failure to provide him a reasonable
accommodation for his disability violates the state's Fair Employment
and Housing Act. Yet the state Court of Appeal in Sacramento last
September upheld a trial court's dismissal of the case, finding the
Compassionate Use Act of 1996 protects people from state criminal
prosecution but not from job actions.

"Unless and until the Legislature, or the electorate, amends FEHA to
compel an employer to accommodate an employee's medicinal use of
marijuana, we conclude that an employer does not violate FEHA by
firing, or refusing to hire, a person whose pre-employment drug test
reveals that the person is using an illicit drug, including marijuana
which is illegal under federal law even when it is being used for
medicinal purposes in accordance with the Compassionate Use Act,"
Presiding Justice Arthur Scotland wrote.

ASA signed on as co-counsel after this ruling, and four state Supreme
Court justices -- Chief Justice Ronald George and associate justices
Joyce Kennard,Kathryn Werdegar and Carlos Moreno -- in November
granted Ross' petition for review.

What this means "depends on how much of an optimist you are," Elford
said. "We would like to think the Supreme Court is taking the case to
give Mr. Ross the remedy to which he's entitled under California law,
but of course it's impossible to predict."

RagingWire's attorney, D. Gregory Valenza of San Francisco, declined
to comment Friday, but in a December posting to his firm's Web site
said RagingWire "is committed to compliance with FEHA, as well as a
drug-free workplace, and is required by many of its customers to
provide a drug-free workplace."

Francis Alvarez, coordinator of Valenza's firm's Disability
Management Practice Group, wrote employers "will breathe a sigh of
relief if the California Supreme Court affirms the Court of Appeal.
It would be disturbing, to say the least, if 'reasonable
accommodation' meant ignoring illegal drug use."

San Luis Obispo attorney Steven Chanley, a shareholder with the
Employer Advocates Group law firm, blogged about the case last
September: "It is difficult not to be sympathetic to the plight of
those who must rely legitimately on mind-altering drugs to mitigate
their physical pain. However, it seems a non-starter to argue that
the employment laws require an accommodation in the form of
permitting illegal drug use."

ASA Legal Director Kris Hermes, in a news release issued last week,
contended a Supreme Court victory could go well beyond just impacting
tens of thousands of medical-marijuana patients working in California
"by providing protections, in a civil context, against many other
forms of discrimination.

"A victory in this case will also help to clarify and reinforce the
argument that state law is sovereign and not pre-empted by federal
law," Hermes sad.

Elford said Ross continues using medical marijuana after taking a job
in a different field: mining. "It's quite a job shift, but I guess
after the dot-com burst... it really has worked out in a very
unfortunate manner for him."