Thursday, January 24th, 2008...2:01 pm
In Which I Add to the Dogpile on California Medi-Pot Protections
The California legal blogosphere is excited today about the California Supreme Court’s decision in Ross v. Ragingwire Telecommunications, Inc. Watch out; that’s a PDF, which you can expect all of my case links to be. In a nutshell, the case says the California medical marijuana law (aka Prop 215, aka the Compassionate Use Act) doesn’t protect you from getting fired by an employer with a no-drugs policy.
Ross, the plaintiff, smokes marijuana to relieve chronic back pain. He got a job that required pre-employment drug testing. He failed. He was fired. He sued for wrongful termination and disability discrimination under the state Fair Employment and Housing Act. SCOCAL (like SCOTUS, but for California, meaning less publicity and more backlog) said too bad. As I understand it — and I am not a lawyer — the court said the Compassionate Use Act is only meant to lift state criminal penalties for users with prescriptions. Quoth Justice Werdegar: “Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees.”
Frankly, duh. But I do question the usefulness of a law with so few teeth — do we want people with liver cancer to get fired for following doctors’ orders (or go to federal prison)? The state legislature is a mess, but they could do worse with their time than clarify whether they want pot to be treated like prescription drugs for civil purposes.
Takes from actual lawyers at California Appellate Report, What’s New In Employment Law?, Storm’s California Employment Law and probably soon Workplace Prof Blog and The UCL Practitioner.
6 Comments
January 24th, 2008 at 2:28 pm
I know nothing about employment law, so this very well may be the right decision, legally. But, even if so, man is it bad policy.
This would be the clarifying question: can an employer fire someone for taking Lipitor or Viagra? If not, what law prohibits them? If so, why is medical marijuana different?
January 24th, 2008 at 2:43 pm
My guess would be that you could fire someone for taking any drugs that you place a restriction on. I haven’t taken employment discrimination, but my gut instinct is that there’s no protected class of (legal) drug users.
January 24th, 2008 at 4:51 pm
The ruling was a blow to California patients, but there was some good news released today. Assemblyman Mark Leno announced that he would introduce legislation to protect medical cannabis patients from employment discrimination. You can read his press release here: http://safeaccessnow.org/downloads/leno_ross_release.pdf
January 24th, 2008 at 9:25 pm
Thanks for the tip about Leno’s bill. I look forward to seeing how Sacto handles that.
I am pretty sure that you’d have to sue under a disability-rights law if you were fired for taking a legal-everywhere prescription drug. That’s out of my butt and two minutes with Google, but I suspect there’s no law in California on prescription-drug-based discrimination because it just doesn’t come up much. I can envision, say, a pilot losing her job because she’s on a drug that impairs her ability to fly, but that would be — what do they call it? — a business necessity.
A certain attention deficit disorder patient we know told me that he was drug-tested for a job while taking ADD drugs. When it came back positive for amphetamines, they were perfectly fine with it, because he’d already shown them his prescription. This must happen all the time.
January 25th, 2008 at 10:38 am
It’s too bad they don’t use SCOTSOC instead of SCOCAL, as the former is more consistent (the latter is only half an acronym, which irks me) and more fun to say. Though CO and CT would have the same name for their courts. I guess they probably go by SCOCO and SCOCONN, huh?
I bet FL is SCOFLA. Heh. Scofflaw.
February 9th, 2008 at 5:54 pm
The Law needs to be more descriptive for patients and employers. The employer probably does not care if the employee uses marijuana, they are just protecting themselves legally in case of an accident. They have no choice until the law can protect them as well!
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