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Medical Marijuana: Employers Can Fire Users, California Supreme Court Rules

Submitted by Phillip Smith on (Issue #520)
Drug War Issues
Politics & Advocacy

The California Supreme Court ruled Thursday 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. The ruling came in Ross v. Raging Wire Telecommunications.

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.

"All I am asking is to be a productive member of society," Ross said in a written statement. "I was not fired for poor work performance but for an antiquated policy on medical marijuana."

His case was watched with great interest by California medical marijuana users. Hundreds have complained of being fired, threatened with firing, or not being hired as a result of their medical marijuana use.

But in siding with employers, the state high court said the 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.

Reaction was rapid and only beginning on Thursday evening. The Los Angeles Times reported that Assemblyman Mark Leno (D-San Francisco) announced the same day he would introduce legislation to prevent employers from discriminating against medical marijuana users. "The people of California did not intend that patients be unemployed in order to use medical marijuana," he said.

Bruce Mirken of the Marijuana Policy Project (MPP) told the Times the decision was a slap at patients. "The court is claiming tha California voters intended to permit medical use of marijuana, but only if you're willing to be unemployed and on welfare," Mirken said. "That is ridiculous on its face, as well as cruel."

The ability of medical marijuana users to function in society is not just an issue in California. Legislative efforts are afoot in Oregon to explicitly allow employers to fire medical marijuana users. In Montana, the Department of Corrections wants to ban probationers and parolees from using medical marijuana. In some other states, like Rhode Island, protections for users are written into the law. Look for a feature article on this issue next week in the Chronicle.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Anonymous (not verified)

I live near the east coast not in CA. But I have chronic back pain from back surgery that was done on me. Marijuana helps my back pain, plain and simple. But where I live I can find myself not only in jail, but in jail with chronic back pain! When are we going to end this madness? Why, someone tell me, why does our government treat Marijuana like we are living 60 years ago??? I just don't understand why.

Fri, 01/25/2008 - 6:47am Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

If a patient uses narcotics like Vicodin, which is much more dangerous and mind altering than marijuana, will they lose their jobs? Probably not. I am appalled by this ruling!

Fri, 01/25/2008 - 11:39am Permalink
Anonymous (not verified)

Here's another case gone down with no mention of 21 U.S.C. 903 or the U.S. Supreme Court ruling in Gonzales v. Oregon, 546 U.S. 243 (2006). Observers tells me that it would be wrong to rely on Gonzales v. Oregon prior to being arrested, and I have no disagreement with them on that set of circumstances. However, for people who have already been arrested or injured by employment discrimination, it's insane not to bring this up when there's nothing to lose by trying. Gonzales v. Oregon makes it clear that Congress reserved the power to the states to determine accepted medical use, and U.S. v. Oakland Cannabis Buyers' Cooperative makes it clear that the federal government must reschedule marijuana if it has any accepted medical use in the United States. Come on people - this is important to the patients. Do it now.

Carl E. Olsen
Iowans for Medical Marijuana

Fri, 01/25/2008 - 11:28am Permalink
Anonymous (not verified)

The citizens of California (myself included) voted to approve medical marijuana. Our representatives need to start actually representing us! By approving marijuana for medical use, we therefore ruled it as no longer an illegal drug. To say that employers can fire their employees for use of an illegal drug, in the state of California at least, therefore rules out marijuana. Clearly the majority of Californians are intelligent enough to see through the facade the US government has created and understand that marijuana is simply not evil. And until our representatives can understand that their job is solely to represent, I will continue to send angry letters.

Fri, 01/25/2008 - 6:31pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

Here's a question you can ask them:

Why is marijuana still listed in schedule 1 of the California Controlled Substances Act - Cal Health & Saf Code § 11054 (2007)?

Schedule 1 controlled substances have no medical use in treatment in the United States and are unsafe for use under medical supervision.

Do you think the federal government is ignorant of this fact?

Carl E. Olsen
Iowans for Medical Marijuana

Tue, 01/29/2008 - 3:14pm Permalink
Anonymous (not verified)

We need to demand that anyone running for President is going to legalize it next year or they will not receive our vote!

Sat, 01/26/2008 - 2:29am Permalink
Anonymous (not verified)

The ONLY viable candidate running who WILL get the federal government out of the business of the war on some drugs is Ron Paul. If he doesn't get the Republican nomination and win the general election, you can kiss the idea of federal marijuana decriminilization or outright legalization goodbye for, at least, the next 4 years.

Sat, 01/26/2008 - 3:09am Permalink
Anonymous (not verified)

Since Paul has a snowball's chance in Hell of getting the nomination, we should focus on candidates who can actually get elected and who have promised to ease the federal stance on medical marijuana. That would be every Democrat in the race.

When medical marijuana is broadly accepted and patients don't become wild-eyed hippie degenerates, the public will come to realize how much they've been lied to about the herb. Then we can get some action on legalization for recreational use.

Sat, 01/26/2008 - 6:26am Permalink
Anonymous (not verified)

The ruling doesn't mean one must be unemployed to use MMJ. It just affirms that you don't have to employ a MMJ user if you don't want to.

Sun, 01/27/2008 - 4:49pm Permalink
Malkavian (not verified)

I wonder how it would go down if an employer said:

"We here at IntoleranceTech really don't like Blacks. We don't want'em here at the company, and I'm sure you understand our position. Sure, John works flawlessly and we don't have any beef with any of his performance on work. We just don't LIKE the fact that he's being so ... Black. 'Cause the company has a strick no-Blacks policy here.That's why we fired him. "

There's really no difference.

Wed, 01/30/2008 - 5:48am Permalink

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