Weed Wars

Dispatches from the California Marijuana Front

August 13, 2010
CalChamber says Prop 19 allows pot on job, court may disagree

In its analysis of Proposition 19 and the marijuana legalization initiative's impact on employers, the California Chamber of Commerce says voters should prepare to "imagine a workplace where employees can show up to work high on marijuana and there's nothing you can do about it."

The CalChamber report
goes on to argue that - if Prop 19 passes - employers will have to accommodate pot smoking on the job, make workplace decisions based on marijuana use and surrender federal contracts for violating the Federal Drug-Free Workplace Act.

CalChamber employment law advisor Jennifer Shaw said in a statement that the initiative will lead to "compromised workplace safety, discrimination lawsuits filed by employees who use marijuana but got fired for poor performance, and increased costs of liability insurance."

And CalChamber president and CEO Allan Zaremberg echoed: "This initiative would change the way employers are required to do business in our state."

But maybe not, according to the California Supreme Court - if you use litigation over the current medical marijuana law as a guide.

Despite California voters passage of the Proposition 215 Compassionate Use Act for medical marijuana in 1996, the court ruled in 2008 that employers set their own workplace rules and pot use - legal or otherwise - can get you fired.

The court issued its ruling in the case of Gary Ross of Carmichael, who was fired after 10 days as a lead systems administrator for a Sacramento firm, RagingWire Telecommunications.

Ross had told a clinician performing a drug test as a condition of his hiring that he had a medical marijuana recommendation for back pain and spasms from injuries sustained in the U.S. Air Force. When the drug test results came in, he was fired.

The court decision
noted that opponents of Proposition 215 made arguments similar to what Prop 19 opponents are making now. It said claims that legal medical marijuana use would would "make it legal for people to smoke marijuana in the workplace" were "disingenuous."

The court ruled that Ross' employer indeed had the right to terminate him and that his firing didn't violate federal and state anti-discrimination laws. It also ruled that employers were not required to make any accommodations or waive any workplace rules for legal medical marijuana users.

The text of Proposition 19 declares that the measure doesn't override "any law prohibiting use of controlled substances in the workplace or by specific persons whose jobs involve public safety."

It also declares: "No person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this act...providing, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected."

Proposition 19 campaign spokesman Dan Newman said that means that employers "retain the right to prohibit and punish employees for marijuana consumption that impairs job performance" and can enforce rules to protect their status as a "drug-free" workplace.

But the CalChamber analysis argues that the anti-discrimination language in the initiative will open up employers to lawsuits and prevent them from terminating workers with positive tests for pot.

The state Supreme Court ruled in the Ross case that the federal Fair Employment and Housing Act against workplace discrimination "does not require employers to accommodate the use of illegal drugs."

Under federal law, marijuana remains illegal - regardless of how Californians vote in November.

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