Last week's California Supreme Court decision upholding the ability of employers to fire employees who test positive for marijuana even if they are patients has shone a spotlight on an increasingly contested grey area created by the disjuncture between state and federal policies toward medical marijuana. With last week's decision, California's more than 150,000 medical marijuana patients now face renewed insecurity on the job. But 11 other states also have medical marijuana laws, and patients are equally at risk of job loss in most of them.
the infamous ruling
While every state medical marijuana law says employers are not required to accommodate on-the-job use, most have provisions that could be interpreted as protecting medical marijuana users' employment rights, but only one, Rhode Island, explicitly protects patients, according to Karen O'Keefe, assistant director of state policies for the Marijuana Policy Project
"There are several states -- California, Montana, Nevada, Oregon, and Rhode Island -- that specify that patients cannot be punished by professional licensing boards, and New Mexico and a number of other states have language like 'not subject to penalty in any manner,'" she said. "In Washington, it says 'the people shall not be denied any right or privilege.'"
But whether such language really means patients are protected from being fired for testing positive on a drug test is likely to be sorted out only by court cases or legislation. Better to get that explicit protective language written into the law in the first place, suggested Jesse Stout, executive director of the Rhode Island Patient Advocacy Coalition (RIPAC).
"We did get specific employment protections written into the law, as well a protection from discrimination in terms of enrolling in schools and leasing property," said Stout. "This happened because we went to our patients and asked them what they thought, and they said they wanted marijuana treated like any other medicine."
While Rhode Island advocates had to take other measures out of the bill to ensure passage, employment protections were not controversial. "They weren't a problem," Stout said.
As a result, Rhode Island's 600 medical marijuana patients are among the best protected in the country when it comes to employment protection. And they don't have to rely on the courts or the legislature to provide protection after the fact.
In California, on the other hand, the Supreme Court has settled matters -- at least for now -- with its ruling last week. In that decision, the Court found that employers may fire workers who use medical marijuana in compliance with California's Compassionate Use Act -- even if they are off duty and even if their use does not affect their job performance.
In that case, Gary Ross, whose doctor recommended medical marijuana for chronic back pain resulting from an injury incurred while serving in the Air Force, was hired by Raging Wire as a systems engineer in 2001 and was required to take a drug test as a condition of employment. He provided the company with a copy of his doctor's recommendation, but the company fired him a week later because of a positive test result.
Ross sued, alleging that the company violated the California Fair Employment and Housing Act (FEHA) by not accommodating his disability. He also argued that the company fired him in violation of public policy because the Compassionate Use Act legalized medical marijuana in the state.
But in siding with employers, the state high court said the state's Compassionate Use Act protected users only from criminal prosecution. "Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees," wrote Justice Kathryn Mickle Werdeger for the majority. "Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions."
Additionally, Werdeger noted, even though medical marijuana is legal under state law it remains illegal under federal law, and "the FEHA does not require employers to accommodate the use of illegal drugs."
Justice Joyce Kennard was scathing in her dissent. The decision was "conspicuously lacking in compassion," she wrote. "The majority's holding disrespects the will of California's voters." The voters "surely never intended that persons who availed themselves" of the medical marijuana act "would thereby disqualify themselves from employment," Kennard said.
She wasn't the only one. "This was an atrocious decision that generated a scathing dissent," said Joe Elford, legal counsel for the medical marijuana defense group Americans for Safe Access, who argued the case for Ryan. "When California voters passed a law ensuring the right of ill Californians to use marijuana, they didn't expect people to be fired for exercising that right."
"This is a decision is based on tortured logic designed to lead to an absurdly narrow reading of the law," said Bruce Mirken, San Francisco-based communications director for MPP. "The court is claiming that California voters intended to permit medical use of marijuana, but only if you're willing to be unemployed and on welfare. That's ridiculous on its face, as well as cruel, as Justice Kennard rightly observed in her dissent."
If the California Supreme Court has slapped patients in the face, at least one legislator is prepared to seek redress in Sacramento. In a press release the same day, San Francisco Democratic Assemblyman Mark Leno announced he would introduce legislation protecting medical cannabis patients' right to employment.
"Today's California Supreme Court ruling strikes a serious blow to patients' rights," stated Leno. "In the coming weeks I will introduce legislation that secures a medical cannabis patient's right to use their doctor recommended medication outside the workplace. Through the passage of Proposition 215 in 1996 and SB 420 in 2004, the people of California did not intend that patients be unemployed in order to use medical marijuana."
If in California the battle over the employment rights of medical marijuana users will ultimately be decided in the legislature, in Oregon, the state with the second highest number of medical marijuana patients, some 16,000, the legislative battle is already in its second year. But instead of legislation seeking to protect patients' rights, Oregonians are faced with competing proposals to instead protect the rights of employers to fire those patients.
Last year, a bill that would essentially have allowed employers to discriminate against medical marijuana patients handily passed the state Senate before dying in committee in the House on the last day of the session. This year, in what is supposed to be a limited special session that lasts only through February, legislators are again seeking to provide cover for employers.
"They are trying to get a watered-down version of last year's bill through," said Leland Berger, an attorney and one of the leaders of Voter Power, the group behind the 1998 passage of the Oregon Medical Marijuana Act (OMMA).
With the special session not yet underway, the bills are currently in the form of "legislative concepts." A hearing was held last week to introduce the competing bills, which would protect employers from lawsuits filed by medical marijuana cardholder employees fired for positive marijuana tests.
Along with Oregon's panoply of medical marijuana advocacy groups, the ACLU of Oregon was a staunch supporter of patients rights' last year, and is back at it again this year. "We oppose both of these bills and any like them for a number of reasons," said Andrea Meyer, legislative director for the ACLU of Oregon, who has been working legislators on the issue. "First, we don't think they're necessary or effective. They talk about impairment, but most employers rely on urinalysis testing to determine impairment, and urinalysis doesn't measure impairment. We know that marijuana metabolites can stay in the system for up to 30 days after ingestion, but that has no correlation with impairment," she said.
"This sort of legislation discriminates against medical marijuana cardholders," Meyer continued. "Oregonians voted to enact a medical marijuana law so people could lawfully obtain marijuana in almost the same manner as any other medicine, and we don't think patients using marijuana should be treated any differently than patients using codeine or morphine or amphetamines," she said.
"We believe in a safe workplace, and we think when an employee is impaired for whatever reason -- emotional distress, under the influence of alcohol or lawful medications or illegal drugs, illness -- the employer has the legal authority to take action," Meyer said. "But we aren't any safer when an employee relies on a urinalysis to determine whether someone is a hazard in the workplace."
The federal government's refusal to recognize medical marijuana is a key part of the problem, said Meyer. "If marijuana could be prescribed like any other controlled substance, I don't think employers would be suggesting it should be treated differently. The fact that the federal government proscribes it gives employers the excuse. What all this says is that we need to change the Controlled Substances Act and make medical marijuana available by prescription," she argued.
Barring that unlikely event, it will be up to the states to protect the employment rights of their medical marijuana patients. "The California Supreme Court decision is an ill omen," said ASA's Elford. "Every one of the medical marijuana states should pass legislation to protect patients, but I'm afraid that's not going to happen."