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.
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."