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Quote of the Day - My generation, faced as it grew with a choice between religious belief and existential despair, chose marijuana. Now we are in our Cabernet stage. - Peggy Noonan
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Employers Can Fire Employees Even If They Have A Note From Their Doctor To Use Marijuana

California voters passed the Compassionate Use Act of 1996, which was enacted as California Health & Safety Code § 11362.5.  Enough Californians voted to pass this Act (a.k.a. Proposition 215) in 1996. 

The statute gives a person who uses marijuana for medical purposes on a physician's recommendation a defense to certain state criminal charges involving the drug, including possession.  The same, however, is not true under federal law.  Users of marijuana can be convicted under federal law if caught.

But what of the drug-free workplace?  Until Thursday, employers have wondered how to handle an employee who has permission to use marijuana from a doctor under the Compassionate Use Act.  As reported in this Washington Post article, "'What are they supposed to do?' said Deborah La Fetra of the Pacific Legal Foundation, which filed a brief supporting the company. 'Employers are held liable all the time when drunk or stoned employees cause trouble, either in the workplace or driving home. That's one of the reasons why the drug-free workplace is so important.'"

Now, employers know.  An employee who tests positive for drugs, even with a doctor's note, can be fired.  The California Supreme Court decided Ross v. RagingWire Telecommunications, and approved the company's termination of Ross, who had tested positive for use of marijuana.  Ross was permitted to use marijuana under this state's laws to treat chronic pain.  The Court ruled, however, "Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees."

Ross had alleged, which the Court procedurally deemed as true to rule on this case, that he was able to satisfactorily perform the functions of his job without complaint by his supervisor.  According to the opinion, "Ross suffers from strain and muscle spasms in his back as a result of injuries he sustained while serving in the United States Air Force.  Because of his condition, [Ross] is a qualified individual with a disability under the FEHA and receives governmental disability benefits. In September 1999, after failing to obtain relief from pain through other medications, [Ross] began to use marijuana on his physician's recommendation pursuant to the Compassionate Use Act."

Then, RagingWire offered Ross a job as lead systems administrator, but required first that he take a drug test.  Ross disclosed to the human relations department that he was authorized to use marijuana under the Compassionate Use, and would likely test positive.  RagingWire confirmed the marijuana prescription with his doctor.  He actually took the blood test, and tested positive for drug use.  The Board of Directors of the company met, and voted to fire the employee.  Ross then sued. 

Ross alleged RagingWire violated the FEHA by discharging him by failing to make reasonable accommodation for, his disability. Ross also alleged the Company terminated his employment wrongfully, in violation of public policy.

The Supreme Court disagreed, and struck Ross' complaint against RagingWire.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, January 26, 2008 at 00:48 Comments Closed (0) |
 
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