Marijuana.com

Buzzby

Employee Who Uses ‘Medical’ Marijuana May Be Fired
Kenneth Ofgang | Metropolitan News-Enterprise | 09/08/2005

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 Test

Ross 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 Reasoning

For 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.

__________________

 

SkyTripper

Should have seen this coming a long time ago.
As long as marijuana is not recognized as a legitimate medicine by the federal govt. an employer can do what they want and fire or refuse to hire anyone who tests positive for THC.
Cases like this one should eventually force the Legislature and hopefully, the federal govt. to accept medical marijuana laws and the will of the voters.
The Supreme Court has obviously chosen to take the chickeshiit role of sitting on the sidelines with regard to medical marijuana, state's rights and the will of the people and keep medical marijuana in limbo from a legal standpoint.....allowing it to remain a legal medicine under state laws that have passed and yet, allowing the federal govt. to continue to prosecute at their discretion and will. Sorry, but they truly cannot have both and expect there to be fairness and equality or conflict of interests.
As far as the Drug-Free Workplace Act is concerned, IMO, for any company to truly abide by such a law should then require that NO employee be permitted to take ANY substance on or off the job which in any way, could affect their job performance. This would need to include the use of all drugs, legal or not, prescribed or not...... that in any way change or make one feel altered in any way. This would include a wide range of substances including allergy medications, sleepaids, caffeine pills, diet pills, pain relievers, antidepressants, alcohol use which ANY effect or "hangover" is in any way noticeable or even tobacco use, etc. etc. etc. and a huge array of drugs obtained by prescription which often are more effective and therefore, more likely to cause notable changes of one's overall performance and state of mind.....not to mention, the numerous side effects caused by these drugs.
The effects of marijuana on an individual are not much different and in many cases, far less extreme than many of the drugs one could use and be under the effects of at work without any fear of reprimand or termination. Not to mention, the fact that THC stays in one's system for so long without the person even being under the influence of it......they still can and do lose their job over it.
Just comes down to the reality that marijuana use under any circumstance, including medicinal use.....is just not truly accepted by many of the "powers that be" including corporate America and its sygmatization and sterotypical perceived use is solely for those who are criminals......lawbreakers who have no respect for authority or conformity.
The fight continues..........

__________________
SkyTripper

fight4rights

I know of someone who recently lost their job in a similar situation. He had an unexpected drug test because he was injured on the job. He tested positive for marijuana, but had a medical card.

I can't say I blame the employers. They have to protect their business. He worked for Dodge, so I'm sure that drug tests are a company wide policy.

It's another reason there shouldn't be drug tests at all and why we need to change the federal law ASAP.

__________________
"Those who do no harm to others should not be harmed by others..." Ethan Nadelmann
"Revolution is not a right, it is an obligation." John Locke
"Do SOMETHING besides argue emotions against the law, because it simply isn't a rational way to affect any type of change whatsoever. No offense intended, but your opinion on things is a moot point unless you take actions to change the law, rather than ramble about how unfair or injust it is." troublemaker_42
"'Just say no' to drugs, except those marketed by big pharmaceutical companies." Ignorant Politicians

BC.Buddy

It's kinda cool, I work for an American company that drug tests everyone before employing them, but they can't drug test the Canadian employees. I guess it's against the law here. Phew!

:spark: Oh Canada...

__________________
BC Marijuana Party
"Overgrow The Government"
| Cannabis Culture | Pot TV |

- Proud Cannabis User -