Employee Who Uses ‘Medical’ Marijuana May Be Fired

Employee Who Uses ‘Medical’ Marijuana May Be Fired
Posted by CN Staff on September 08, 2005 at 10:42:57 PT
By Kenneth Ofgang, Staff Writer
Source: News-Enterprise
California -- Firing an employee who tests positive for marijuana does not violate the Fair Employment and Housing Act, even if the employee can show that he uses marijuana for medicinal purposes under Proposition 215, the Third District Court of Appeal ruled yesterday. The court rejected Gary Ross’ claim that because the initiative protects his right to physician-approved marijuana use as treatment for lower back strain and muscle spasms, his employer’s refusal to accommodate his use of the drug constituted discrimination on the basis of disability and a violation of public policy.
“Because the possession and use of marijuana is illegal under federal law, a court has no legitimate authority to†require an employer to accommodate an employee’s use of marijuana, even if it is for medicinal purposes and thus legal under California law,” Presiding Justice Arthur Scotland wrote. “If FEHA is to be extended to compel such an accommodation, that is a public policy decision that must be made by the Legislature, or by the electorate via initiative, and not by the courts.” Positive TestRoss worked as a systems administrator at Ragingwire Telecommunications, Inc. in Sacramento, but was fired eight days after starting work as a result of his positive test for THC, the main chemical found in marijuana. The company said it would consult with Ross’ physician before making a final decision on his employment, but went ahead and fired him. In his complaint, Ross alleged that he uses the drug, on his doctor’s recommendation, because other treatments for the injuries he suffered during military service over 20 years ago have not afforded relief. He also contended that neither his disability nor his marijuana use affect his ability to perform the essential functions of the job Ragingwire hired him to do. On demurrer, Ragingwire argued that because marijuana is a controlled substance that Ross cannot use under federal law, and because nothing in Proposition 215 requires employers to retain employees who use the drug, there was no violation of FEHA or public policy. Sacramento Superior Court Judge Joe S. Gray agreed and dismissed the suit. Scotland, writing for the Court of Appeal, said Gray was correct. Proposition 215, the presiding justice explained, “simply permits a person to use marijuana for medicinal purposes in our state without incurring state criminal law sanctions” and “says nothing about protecting the employment rights of those who do so.”The jurist cited the recent ruling of the U.S. Supreme Court that the federal government may enforce its anti-marijuana laws against California residents without regard to Proposition 215. “Plaintiff claims we cannot resort to federal law to resolve his claim under FEHA, but he refers us to no legal authority supporting the proposition that he is exempt from federal criminal statutes merely because he lives in California,” Scotland explained. As long as marijuana possession remains a federal crime, the jurist went on to say, requiring an employer to tolerate marijuana use as a disability accommodation would create numerous problems that the voters could not have intended to create by passing the initiative. Scotland’s ReasoningFor example, Scotland reasoned, if other employees who use prescribed medication in order to perform their jobs take those drugs at work, medical marijuana users might be entitled to insist on the same accommodation. This, in turn, would subject the employer to negative consequences, including federal raids and the loss of state contracts under the Drug-Free Workplace Act.An additional complication, the presiding justice wrote, is that Proposition 215 requires no more than an oral recommendation by a physician in order for an employee’s marijuana use to be shielded from state criminal prosecution. Since the employer would have little means of determining the legitimacy of the employee’s claim that his or her use of the drug is Proposition 215-protected, “the employer could be put to the Hobson’s choice of either hiring an employee who may be using drugs illegally and is a substance abuser, or refusing to hire the employee and risking the expense of a lawsuit alleging discrimination.”The case is Ross v. Ragingwire Telecommunications, Inc., 05 S.O.S. 4364. Source: Metropolitan News-Enterprise (Los Angeles, CA)Author: Kenneth Ofgang, Staff Writer - Appellate CourtsPublished: Thursday, September 8, 2005Copyright: 2005 Metropolitan News CompanyWebsite: Medical Marijuana Archives 
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Comment #9 posted by Max Flowers on September 09, 2005 at 10:18:40 PT
What's even scarier is this: you all, just "regular folks" in this comment board, came up with far better legal points than this guy's ATTORNEY did!?
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Comment #8 posted by runderwo on September 08, 2005 at 18:51:51 PT
If the employer knows he is using a drug that is federally illegal, could the employer be liable under the RAVE act for "facilitating" its use on the premises or whatever nebulous language was used? Have to run so I can't look it up.
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Comment #7 posted by charmed quark on September 08, 2005 at 15:19:42 PT
Relying on Federal Law for a State Ruling !?
Bizarre. That makes no sense, relying on Federal law to make a state decision. The only issue I could see is if the employer is under Federal "Drug-free Workplace" (what a joke that name is) rules. And the final statement that because use is based on "oral recommendations" by a physician there is no way to verifty legitimacy is simply not true. You need a written recommendation, no? So he made a false statement in the ruling.Regarding using marinol vs. cannabis - you can actually detect the difference if you want to. You can use gas chromography to detect the other cannabinoids associated with whole cannabis that are absent in Marinol. Whether you'd want to go to the expense would be up to the employer.-CQ
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Comment #6 posted by runderwo on September 08, 2005 at 14:37:24 PT
The question was about him using cannabis as medication OUTSIDE of work. Then to justify their opinion, they cited examples of how using it AT work would cause several problems. Not one of the problems they mentioned applies to him using cannabis on his own time outside of the workplace. Way to put up that straw man, guys.
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Comment #5 posted by dongenero on September 08, 2005 at 13:15:50 PT
excellent point Dankhank
Why couldn't he just hold a prescription for Marinol and then medicate with whole plant?
I do not believe the test results would differentiate. Oopps there goes the corporations' defense...pooof!
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Comment #4 posted by Zandor on September 08, 2005 at 12:53:50 PT
I don't get this
What’s more problematic is the courts switching between federal and state law in their ruling to manipulate the outcome to their desired conclusion. They said,” Presiding Justice Arthur Scotland wrote. “If FEHA is to be extended to compel such an accommodation, that is a public policy decision that must be made by the Legislature, or by the electorate via initiative, and not by the courts.”That what we did with prop 215 we voted in the law, respect our state rights and protect our state residents. We are the ones who pay your salaries you work for us remember?
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Comment #3 posted by Dankhank on September 08, 2005 at 12:53:26 PT
Clean Urine?
Screw synthetic urine ...Since it's in CA , use the government's own synthetic THC ...Those doctors that "recommend" Cannabis could also write up a prescription for Marinol.Here is the cautions for Marinol note: Be sure that there is a responsible person nearby when you first start taking MARINOL® (or if your health care professional decides to change your dose) in case any of these side effects occur. Do not drive a car or operate machinery until you know how MARINOL® affects you. Exercise caution when taking sedatives, hypnotics, or other mind-altering substances, or drinking alcohol while taking MARINOL®. There is a potential for additive central nervous system effects such as dizziness and drowsiness.Peace ....
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Comment #2 posted by Max Flowers on September 08, 2005 at 12:28:38 PT
Bad law
I agree, that is such BS. If the THC test hadn't shown it, the company probably never would have known about his medical use and Ross would have gone on doing his job satisfactorily. I wish Ross would have been savvy enough to use synthetic (or clean) urine.
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Comment #1 posted by dongenero on September 08, 2005 at 12:10:54 PT
Ragingwire Telecommunications
Raging***hole Telecommunications is more like it.The guy is a vet injured while serving in the military and they can him......nice.What really is the difference to this employer whether a physician writes a recommendation or a prescription?
How does this employer know whether an employee using prescription painkillers is legitimate or not?This is it where you see it.The upside? Ragingdipshit Telecommunications will probably tank in the next 5 years and hopefully, with this publicity, Gary Ross has IT job offers ringing his phone off the hook.
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