Thomas D. Elias: No good reason for medipot decision counter to voters’ wishes
It is almost certain that the 56 percent of California voters who approved Proposition 215 in an attempt to legalize medical use of marijuana did not intend for employers to discriminate against persons who take advantage of the law they passed.
As it has evolved since passage, the 1996 initiative lets cities and counties issue medipot usage cards to users who smoke the weed to ward off pain caused by ailments from migraine headaches to a wide variety of cancers. Where they exist, the cards can only be obtained with a doctor’s recommendation.
With that background, the question before the state Supreme Court earlier this year was whether an employer can fire a worker for using medical marijuana with a doctor’s recommendation.
Given that court’s longtime background as a bastion of civil liberties, most recently seen in a gay marriage decision very much in line with its tradition of ensuring Californians have even more rights than the U.S. Constitution guarantees, the answer was surprising.
Yes, the court said, a worker can be fired for using medipot with a doctor’s permission even if that use has zero effect on his or her job performance.
“The Compassionate Use Act (Proposition 215) does not eliminate marijuana’s potential for abuse or the employer’s legitimate interest in whether an employee uses the drug,” said the 5-2 majority opinion written by Justice Kathryn Mickle Werdegar. She somehow thought she was backing up that statement by adding that “Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.” What about legal drug use, as defined by California voters?
The case itself was totally new judicial ground. Because California and only a few other states have okayed any form of legal medical marijuana use, no similar case has reached the U.S. Supreme Court, the only venue whose decisions form a binding precedent for the top state courts.
It’s clear the court majority reacted with a knee-jerk against any kind of pot use.
That’s essentially what dissenting Justices Joyce L. Kennard and Carlos Moreno said in their minority opinion. The court ruling “renders illusory the law’s promise that responsible use of marijuana” will not be penalized, they said.
In this case, neither employer RagingWire Com-munications of Sacramento nor anyone else ever claimed that computer technician Gary Ross was less than competent during the 11 days he worked there.
Rather, company lawyers said the firm feared it might be subject to federal raids if Ross stayed.
Federal agents have staged hundreds of raids on city- or county-sanctioned medical marijuana clinics and arrested many medipot growers. But never on those who employ users.
Prosecutors maintain federal laws making all uses of pot illegal trump the state initiative and any local ordinance designed to make it work. The U.S. Supreme Court agreed in 2005, ruling Proposition 215 does not exempt medical marijuana users from prosecution, no matter how severe their illness.
So when a standard pre-employment test detected Ross’ pot use, the state’s high court said, RagingWire was free to bounce him even though he had shown his medipot card prior to the drug test.
When Ross sued, the company responded that it would “arguably be complicit in an activity that’s illegal under federal law” and might lose federal contracts if it kept Ross.
All this left medipot activists frustrated until the state Assembly in late May passed a bill essentially revoking the court decision. This putative law would let medipot patients work, like anyone else. But they could not smoke on the job.
Yet to be determined is whether the state Senate will go along. If it does, Gov. Arnold Schwarzenegger – an admitted pot smoker with no medical justification during his bodybuilding and movie days – would have to be a complete hypocrite to veto it.
If that law doesn’t pass, the message delivered by several medical marijuana backers at a news conference just after the court decision came down will stand. “People are going to endure pain and suffering because Supreme Court justices don’t feel marijuana has any medical value. It doesn’t matter what citizens and patients say. It doesn’t matter what doctors say.”
What’s more, the dissenting justices were absolutely correct in saying the decision, if it stands, means medipot users can be punished for trying to kill their pain. They would then continue to face what Kennard called a “cruel choice” between losing their jobs or giving up the only medication that provides significant comfort in coping with some illnesses and with cancer chemotherapy.
The ruling also opens up other problems for patients who use legal narcotics like morphine for pain. They, too, could fail a drug test, get fired and have no legal recourse.
For if employees can be dumped for using one drug, who’s to say they can’t also be fired for using another?
Thomas D. Elias is a syndicated columnist who writes about California issues. Contact him via e-mail at firstname.lastname@example.org.
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