Tuesday, December 29, 2009

medical marijuana and the workplace

The Press-Enterprise

It could be the classic quandary for a company: They want to hire a new
employee but the person has failed a pre-employment drug test. Then he
or she produces a legally obtained prescription to use marijuana.

Despite the growth of marijuana dispensaries and the willingness of some
physicians to prescribe the drug for medical reasons -- and despite the
tendency for California to side with employees in workplace issues --
the law is not on the side of people who use the drug.

Riverside's first marijuana dispensary opened less than a month ago and
there are about 1,000 such businesses in Los Angeles alone, so the issue
could come up more often.

A 2008 decision by the California Supreme Court found that a company
would be within its right to not hire someone or terminate an employee
whose drug test came up positive for marijuana, even if that use did not
violate state law.

That case was brought by Gary Ross, a U.S. Air Force veteran who was
hired to work as a systems administrator at RagingWire
Telecommunications Inc., a Sacramento company, in 2001. Several days
later, his drug test revealed the active ingredient for
doctor-prescribed marijuana in his system and he was fired.

Ross, who suffered from chronic back pain, sued RagingWire. He claimed
he was being legally treated for a disability, which would entitle him
to protection under California's Fair Employment and Housing Act, which
protects people from being fired because of ailments.

According to court documents, he said neither his back pain nor the
marijuana affected his ability to do his job.

"Just as it would violate the FEHA to fire an employee who uses insulin
or Zoloft, it violates the statute to terminate an employee who uses a
medicine deemed legal by the California electorate," Ross argued in
court documents.

California's workplace rules, in areas including overtime, sexual
harassment and break time, tend to favor workers over employers.

But the court ruled that marijuana, despite the 1996 voter initiative
that allows its medicinal use in California, is still considered an
illegal drug. The laws that cover workplace fairness do not require
employers to accommodate users and the 1996 Compassionate Use Act only
protects users against criminal prosecution.

"The Compassionate Use Act has to do with treatment of medical problems,
but it wasn't intended to change the relationship between employers and
employees," said Nate Kowalski, who practices employment law for the
Cerritos-based firm Atkinson, Andelson, Loya, Ruud & Romo.

Employers generally support the state court's decision, but many agree
it is an interesting dilemma.

"With our industry it's mandatory," said Valerie Liese, president of
Ontario-based Jack Jones Trucking. "We have the safety of the public in
our hands and I would not be able to have someone in that situation
working for me."

Max Arbolida, vice president for employee relations at San
Bernardino-based Arrrowhead Credit Union, has worked as a human
resources official for 25 years, which includes tenures at an aerospace
company and a nuclear power plant.

Arbolida said that, speaking strictly as a human resources expert, an
employer has a right to expect clear-headed workers.

But Ross, the plaintiff who sued his employer in 2001, told the Supreme
Court that he has continued to work in the telecommunications field and
has performed satisfactorily, court documents show.

That is a point that is often left out of this debate, said Allen St.
Pierre, executive director of the National Organizations for the Reform
of Marijuana Laws, because most of the drug use in question does not
happen on the job, and marijuana can remain in a body's system for a
month or more.

"No one wants to see employees impaired," St. Pierre said. "But a urine
test doesn't measure impairment, it just measures past use."

Lanny Swerdlow, a registered nurse and medical marijuana activist who
last year opened a clinic in Riverside where patients can get
prescriptions, said he's not aware of any legal challenges to the

He said the only possible avenue for an appeal would be applying the
federal Americans with Disabilities Act.

"That would probably take years," Swerdlow said.


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