Weed Wars

Dispatches from the California Marijuana Front

October 27, 2010
CalChamber radio ad depicts Reefer Madness in the workplace

A statewide radio advertising blitz paid for by the California Chamber of Commerce's Business PAC features a commercial depicting a stoned California workforce.

The spot calling for a "no" vote on the Proposition 19 marijuana initiative is bound to get your attention. But it merits a closer look - and some chilling out on its more colorful claims.

Here is the text of the CalChamber commercial, followed by some observations:

Imagine coming out of surgery and the nurse caring for you was high - or having to work harder on your job to make up for a co-worker who shows up high on pot. It could happen in California if Proposition 19 passes.

Prop 19 would do more than simply legalize marijuana. Prop 19 is worded so broadly that it would hurt California's economy, raise business costs and make it harder to create jobs. Employees would be allowed to come to work high and employers would be unable to punish an employee for being high until after a workplace accident.

Not only could workers compensation premiums rise, businesses will lose millions in federal grants for violating federal drug laws. California's economy is bad enough. Prop 19 will hurt workers and business and cost jobs.

Twenty five California newspapers, including the Chronicle and the Bee, and Dianne Feinstein agree: Vote No on Prop 19.

The chamber's over-the-top depiction of a stoned post-surgical nurse and its frets about people coming to work high contradict rules on marijuana in the workplace upheld by the California Supreme Court and federal law.

But businesses may indeed need to worry about potential employee litigation if Proposition 19 passes, based on a declaration in the initiative: "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."

Yet the initiative also says the measure doesn't supersede "any law prohibiting use of controlled substances in the workplace or by specific persons whose jobs involve public safety." It goes on to say "the existing right of an employer to address consumption that actually impairs performance by an employee shall not be affected."'

The chamber's warnings of companies being defenseless against stoned workers - and in danger of losing millions of dollars in federal drug-free workplace grants - don't square with a landmark 2008 state Supreme Court decision.

In the case of a Sacramento man, a legal medical marijuana user who was fired by a telecommunications firm for testing positive for pot, the court ruled that employers have a right to set and enforce workplace rules against drug use and to require drug testing.

The plaintiff, Gary Ross, contended his rights as legal marijuana user under California's 1996 Proposition 215 medical marijuana law were violated when he was dismissed after results came in from a pre-employment drug test.

The court ruled that employers can fire workers - or refuse to hire them - based on positive drug tests or impairment, whether their drug use is legal or not. It also ruled that the federal Fair Employment and Housing Act "does not require employers to accommodate the use of illegal drugs."

Notably, the court also declared that earlier claims by medical marijuana opponents who argued Proposition 215 "would make it legal to smoke marijuana in the workplace" were "obviously disingenuous." It said public intoxication laws remain in place - and stoners in the workplace can be fired just as easily as drunks.

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