Company can fire medical pot user, court rules CALIFORNIA

Inside his Oakland lawyers offices, Gary Ross talked to the media about his court case Thursday. Ross was fired by a Sacramento company with federal contracts after they learned he uses medical marijuana for back spasms. The State Supreme Court ruled today that companies have a right to take this action. {By Brant Ward/San Francisco Chronicle} less Inside his Oakland lawyers offices, Gary Ross talked to the media about his court case Thursday. Ross was fired by a Sacramento company with federal contracts after they learned he uses medical marijuana for ... more Photo: Brant Ward Photo: Brant Ward Image 1 of / 1 Caption Close Company can fire medical pot user, court rules 1 / 1 Back to Gallery

The state Supreme Court poked another hole in California's medical marijuana law Thursday, ruling that the voter-approved measure doesn't protect users from being fired for testing positive for the drug at work.

In a 5-2 decision, the court said the 1996 initiative, Proposition 215, exempted medical marijuana patients and their caregivers from state prosecution, but didn't limit an employer's authority to fire workers for violating federal drug laws.

"We have no reason to conclude the voters intended to speak so broadly, and in a context so far removed from the criminal law, as to require employers to accommodate marijuana use," Justice Kathryn Mickle Werdegar said in the majority opinion.

Dissenting Justice Joyce Kennard said the voters never intended to subject medical marijuana users to the "cruel choice" of forgoing their medication or losing their jobs. A state lawmaker spoke in similar terms later in the day in announcing legislation that would overturn the ruling.

"The people of California did not intend that patients be unemployed in order to use medical marijuana," said Assemblyman Mark Leno, D-San Francisco.

He said he would introduce a bill in a few weeks that would protect employees from being fired for off-the-job marijuana use that had been recommended by a doctor for pain or illness. Leno said the legislation would not allow employees to possess or use the drug at work.

He said he is optimistic the Legislature will pass such a bill but is uncertain whether Gov. Arnold Schwarzenegger would sign it. The governor's office declined to comment.

Schwarzenegger endorsed medical marijuana during the 2003 recall campaign that put him in office, but he has also been receptive to the concerns of businesses, which are likely to oppose any legislation restricting their ability to fire drug users.

Prop. 215, which made California the first of a dozen states to legalize medical marijuana, has been weakened in a series of conflicts with federal laws, which prohibit the possession, cultivation or distribution of marijuana and declare that the drug has no legitimate use.

The U.S. Supreme Court has upheld the federal government's authority to shut state-approved medical marijuana dispensaries in California and prosecute patients and their suppliers under federal law.

Thursday's case involved Gary Ross, a 45-year-old computer technician who was fired by a Sacramento firm for testing positive for marijuana despite a doctor's note saying he needed the drug to combat back spasms that cause severe pain.

Ross, according to his lawsuit, injured his back while in the Air Force in 1983 and could find no relief from the spasms until 1999, when his doctor recommended marijuana.

He was hired as a computer administrator by RagingWire Communications in September 2001 and was fired 11 days later for testing positive for marijuana. Ross said he had never used the drug at work or been impaired by its effects on the job, and that he had performed his duties competently.

Nonetheless, the court majority said, neither Prop. 215 nor the state's disability discrimination law requires employers to allow workers to use drugs banned by federal law.

Prop. 215 "does not eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug," Werdegar said. She noted that the initiative did not mention employment or the workplace and said RagingWire "has not prevented (Ross) from having access to marijuana."

Kennard, joined in dissent by Justice Carlos Moreno, countered that the ruling "renders illusory the law's promise that responsible use of marijuana" will not be penalized.

Ross now manages campgrounds in and around Sacramento, a job that he said did not require a drug test.

"People are going to endure pain and suffering because Supreme Court justices don't feel marijuana has medical value," Ross said. "It doesn't matter what the citizens say. It doesn't matter what the doctors say."

Lawyers on both sides of the case said pre-employment testing for marijuana is common among California employers, especially those that have federal contracts and are legally required to keep their workplaces drug-free.

No surveys have been conducted on the prevalence of testing, but attorney Joseph Elford of the advocacy group Americans for Safe Access, who represented Ross, said hundreds of people have called the organization in its six years of existence with similar complaints. He said he feared the ruling would prompt more employers to fire medical marijuana users or refuse to hire them.

Robert Pattison, the lawyer for RagingWire, praised the court for clearing up the uncertain relationship between Prop. 215 and workplace discrimination laws, which require employers to offer reasonable accommodations to employees suffering from disabilities.

The ruling demonstrates, he said, that disability law "doesn't require California employers to accommodate the use of illegal drugs, including so-called medical marijuana."