Weed Worries

ONLINE UPDATE

Click here to read about the California Supreme Court's ruling on this case.

Gary Ross is not your stereotypical California pothead. The 44-year-old father of two is a U.S. Air Force veteran with a successful track record as a computer systems administrator. But since 1999 he has used marijuana regularly--and legally--to treat chronic pain and muscle spasms from a back injury he suffered in 1983 while in the military.

Although Ross qualifies as a medical marijuana user under California's Compassionate Use Act, RagingWire Telecommunications Inc. fired him in 2001 after he failed a drug test. Ross filed suit against the company, contending that people using pot with their doctor's approval should be considered disabled and be protected from employment discrimination under state disability law.

The case--Ross v. RagingWire Telecommunications Inc.--is currently before the California Supreme Court. Its outcome will determine whether employers with operations in California must accommodate medical marijuana users by allowing them to smoke pot while off duty, and whether they risk discrimination claims if they fire or fail to hire a qualified patient who fails a drug test.

The case is also being closely watched by employers in 11 other states where medical marijuana users are protected from criminal prosecution because a decision for the plaintiff could spur a rash of similar lawsuits.

The advocacy group Americans for Safe Access (ASA) says it receives about 100 calls a year from people using pot with physician approval who either were not offered a job or were fired after failing a drug test. "That's just the tip of the iceberg because not every patient who gets fired gives us a call," says Joseph Elford, chief counsel for ASA, who is representing Ross. "So we can say with certainty that the case will affect thousands
of employees."


Employer Liability
Ross unintentionally triggered the test case in September 2001 when he accepted a position as lead systems administrator at RagingWire. Ross apparently thought the pre-employment drug test would not be a problem because he qualified as a medical marijuana user under the Compassionate Use Act of 1996, passed as an initiative by California voters in 1999 to protect patients from criminal drug charges. But California's law, like those of states with similar laws, does not address discrimination or require employers to accommodate medical marijuana users.

Ross didn't try to conceal his pot use. He presented his doctor's recommendation before providing his urine sample. But his new job came to an abrupt end when his drug test came back positive a few days after he started work.

One year later Ross sued RagingWire, alleging two counts of employment discrimination under California's Fair Employment and Housing Act; wrongful termination; and breach of contract. The Superior Court dismissed the case, reasoning that all marijuana use is illegal under federal law and employers have a right to ban the use of illegal drugs. The state court of appeals upheld that decision. Ross' appeal to the California Supreme Court attracted amici briefs from a coalition of state and national medical organizations, disabilities rights groups and five state legislators. The conservative Pacific Legal Foundation and other groups representing employers filed briefs backing RagingWire. Deborah LaFetra, attorney for the Pacific Legal Foundation, says her organization got involved because employers face increased liability from employees with impaired judgment.

"If employers are held liable if drunk employees cause harm, would they not also be liable if a stoned employee causes harm?" she says.


Legislative Intent
When the state high court heard oral arguments Nov. 6, RagingWire's attorney Robert Pattison, partner in Jackson Lewis, argued that employers would be subject to disruptive workplace searches by federal authorities, increased absenteeism, diminished productivity and greater health care costs if they had to hire medical marijuana users.

Elford counters that federal authorities are unlikely to pursue an individual drug user, and since marijuana helps Ross to sleep at night, it actually increases his productivity. He also points out that many employers allow the use of other painkillers that could impair performance.

"Medical evidence demonstrates that Vicodin is more addictive and psychotropic than medical marijuana," Elford says. "But employers commonly accommodate people who use Vicodin outside the workplace." One point of contention is the legislature's intent in passing a 2003 amendment to the Compassionate Use Act that clarified the right of employers to ban medical marijuana use during working hours. In their brief five state legislators who sponsored the bill said that by specifying that employers do not have to accommodate medical marijuana users on the job, the legislature intended to protect the employees' right to use pot at home.

But LaFetra says the amendment cannot logically be extended to require accommodation of marijuana use at home. "You can't get to a positive from a negative," she argues.


Explosive Issue
A decision from the state Supreme Court is due by early February. If the court finds for the plaintiff, "it could be explosive," says Nancy Delogu, shareholder in Littler Mendelson's Washington, D.C., office.

"Someone will immediately petition the U.S. Supreme Court for certiorari because that decision would obviate drug testing in the state of California," she says. "Almost anyone can get a recommendation for medical marijuana, and 60 percent of positive drug tests are positive for marijuana, so a lot of employers would find it is not worthwhile to continue drug testing."

A decision in favor of RagingWire will not make the issue go away either. Groups supporting medical marijuana already plan to seek legislative action to protect users on the job.

"The court may say the Compassionate Use Act was only intended as a defense to criminal sanctions and if you want to expand it to the civil arena, you have to take it to the legislature," Elford says. "We think we can get the legislature to act, so we could turn that [decision for the defense] within a year into a win."

Senior Editor

Mary Swanton

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