[ilbegone]

Prescription pot does not fly at employee screenings

December 28, 2009

By JACK KATZANEK
The Press-Enterprise

It could be the classic quandary for a company: They want to hire a new employee but the person has failed a pre-employment drug test. Then he or she produces a legally obtained prescription to use marijuana.

Despite the growth of marijuana dispensaries and the willingness of some physicians to prescribe the drug for medical reasons -- and despite the tendency for California to side with employees in workplace issues -- the law is not on the side of people who use the drug.

Riverside's first marijuana dispensary opened less than a month ago and there are about 1,000 such businesses in Los Angeles alone, so the issue could come up more often.

A 2008 decision by the California Supreme Court found that a company would be within its right to not hire someone or terminate an employee whose drug test came up positive for marijuana, even if that use did not violate state law.

That case was brought by Gary Ross, a U.S. Air Force veteran who was hired to work as a systems administrator at RagingWire Telecommunications Inc., a Sacramento company, in 2001. Several days later, his drug test revealed the active ingredient for doctor-prescribed marijuana in his system and he was fired.

Ross, who suffered from chronic back pain, sued RagingWire. He claimed he was being legally treated for a disability, which would entitle him to protection under California's Fair Employment and Housing Act, which protects people from being fired because of ailments.

According to court documents, he said neither his back pain nor the marijuana affected his ability to do his job.

"Just as it would violate the FEHA to fire an employee who uses insulin or Zoloft, it violates the statute to terminate an employee who uses a medicine deemed legal by the California electorate," Ross argued in court documents.

California's workplace rules, in areas including overtime, sexual harassment and break time, tend to favor workers over employers.

But the court ruled that marijuana, despite the 1996 voter initiative that allows its medicinal use in California, is still considered an illegal drug. The laws that cover workplace fairness do not require employers to accommodate users and the 1996 Compassionate Use Act only protects users against criminal prosecution.

"The Compassionate Use Act has to do with treatment of medical problems, but it wasn't intended to change the relationship between employers and employees," said Nate Kowalski, who practices employment law for the Cerritos-based firm Atkinson, Andelson, Loya, Ruud & Romo.

Employers generally support the state court's decision, but many agree it is an interesting dilemma.

"With our industry it's mandatory," said Valerie Liese, president of Ontario-based Jack Jones Trucking. "We have the safety of the public in our hands and I would not be able to have someone in that situation working for me."

Max Arbolida, vice president for employee relations at San Bernardino-based Arrrowhead Credit Union, has worked as a human resources official for 25 years, which includes tenures at an aerospace company and a nuclear power plant.

Arbolida said that, speaking strictly as a human resources expert, an employer has a right to expect clear-headed workers.

But Ross, the plaintiff who sued his employer in 2001, told the Supreme Court that he has continued to work in the telecommunications field and has performed satisfactorily, court documents show.

That is a point that is often left out of this debate, said Allen St. Pierre, executive director of the National Organizations for the Reform of Marijuana Laws, because most of the drug use in question does not happen on the job, and marijuana can remain in a body's system for a month or more.

"No one wants to see employees impaired," St. Pierre said. "But a urine test doesn't measure impairment, it just measures past use."

Lanny Swerdlow, a registered nurse and medical marijuana activist who last year opened a clinic in Riverside where patients can get prescriptions, said he's not aware of any legal challenges to the ruling.

He said the only possible avenue for an appeal would be applying the federal Americans with Disabilities Act.

"That would probably take years," Swerdlow said.