Occupation’s Hazard

Marijuana in the workplace

By Kevin Woo  California Lawyer | April 2011

When Gary Ross took a job as a systems administrator in Sacramento, he didn’t think he’d have to choose between gainful employment and his health.

But a conflict quickly presented itself after RagingWire Telecommunications asked him to take a drug test during the hiring process. Ross, who uses medical marijuana to stave off persistent back pain following a U.S. Air Force injury from the early ’80s, knew that he’d test positive for the drug, so he supplied RagingWire with his doctor’s recommendation for marijuana use.

A week into the job, Ross was fired: His drug test came back positive for tetrahydrocannabinol (THC), the active ingredient in marijuana, which is banned under the federal Controlled Substances Act of 1970 (21 U.S.C. §§ 801971). Ross sued in state court under California’s Fair Employment and Housing Act, which prohibits discrimination based on disabilities and medical conditions (Ross v. RagingWire Telecomm., Inc., 42 Cal. 4th 920 (2008)). But RagingWire argued that marijuana use is illegal and that the company has a zero-tolerance drug policy.

Ross and other medical marijuana users in California have found themselves in employment-law limbo since passage of the 1996 Compassionate Use Act, a voter approved initiative that authorizes patients and their caregivers to possess medical marijuana without fear of criminal repercussions; but the act doesn’t address the rights of employees who test positive for having the drug in their system.

Most labor attorneys agree that currently, employees fired for smoking pot for medicinal reasons have virtually no protection under California law. But dismissal needn’t be a foregone conclusion. “Contrary to what many employers believe, drug testing does not require firing employees who test positive,” says Allen Hopper, an attorney with the ACLU of Northern California. “Employers are granted wide discretion in determining what kind of a policy to put into place to ensure that there is no drug use in the workplace.”

In fact, some attorneys have been able to win unemployment benefits for their clients in such circumstances. Beverly Hills sole practitioner Meital Manzuri represented an Orange County construction worker who was fired after testing positive for THC following a workplace accident.

The client’s claim for unemployment was denied because the employer maintained that he was fired for cause. Manzuri appealed the ruling, arguing, among other things, that the employer’s drug policy only required workers “not to be intoxicated” on the job and, moreover, was vague.

The judge agreed and granted the construction worker four months of unemployment pay. “We couldn’t get his job back, but we could get him some unemployment,” Manzuri said.

Fifteen states now have laws that permit medical marijuana use, and many of them include protection for workers. In November, Arizona passed Proposition 203, which bars employers from discriminating against medical-marijuana patients but allows them to terminate any who use the drug while on the clock, or whose work is impaired by it.

California Gov. Arnold Schwarzenegger vetoed similar legislation sponsored by state Senator Mark Leno of San Francisco in 2008 (AB 2279); Leno submitted another version of the bill (SB 129) in January.

“One would have to believe that when voters passed [the Compassionate Use Act] they intended for it to only benefit unemployed Californians,” Leno says of the legal no-man’s land that California’s medical cannabis users currently inhabit. “That makes no sense at all. Those who benefit from medical marijuana use should be able to regain their strength and gain employment. It’s good for them, it’s good for the economy.”