In an ideal world government would have no say in the hiring practices of private companies, so such an issue would never arise. But we live in the world we live in, so perhaps it is helpful that the California Supreme Court has taken the case of Gary Ross, a former computer systems administrator who was fired for testing positive for marijuana, even though he was using it to alleviate chronic back pain with the approval of a physician, which is legal under the Compassionate Use Act approved by voters in 1996 and has never been challenged or invalidated in court.
The situation is confusing, and companies could use a little guidance, even if the Supreme Court decides the proper remedy is for the Legislature to clarify matters.
In brief, California and 10 other states allow people with a recommendation from a licensed physician to use marijuana to alleviate medical conditions. But the federal government still keeps marijuana on Schedule I under the 1974 Controlled Substances Act – unjustifiably under the law as written, but that’s another issue – which means no use whatsoever is legally permitted.
Federal drug laws do not require private companies to test employees or new hires for illicit drugs, but many companies find it prudent to do so, especially since abuse of some drugs can lead to poor performance at work or in some cases can endanger fellow workers, particularly in heavy-equipment operation and manufacturing operations. But what are employers to do when state and federal laws are in conflict? The compassionate and intelligent course, at least in California, would be to create exceptions for legitimate medical users of marijuana, but would doing (and being known to do so) so invite unwelcome attention from the feds?
The company that hired Mr. Ross in 2001 said it would consult with his doctor, but when his pre-employment drug test came back positive it fired him instead. He filed a complaint saying he was discriminated against because of a disability. The 3rd District Court of Appeal in Sacramento ruled that the company was justified since marijuana is still fully prohibited under federal law. The California Supreme Court agreed last week to hear Mr. Ross’ appeal.
Upholding the company’s decision based on federal law was a mistake in that California courts are sworn to uphold California law, which allows medical use of marijuana. However, referring the matter to the Legislature or simply to the judgment of private companies, some of which will decide differently than others, could still be the best course.
The Compassionate Use Act, which allows patients and caregivers to grow, possess and use marijuana, does not require employers to retain employees who use the substance. Perhaps the best way to handle the apparent conflicts here is for companies to decide for themselves, even as some companies offer health benefits for gay domestic partners and others do not.
This case has raised an issue few companies or citizens have wanted to think about much. To the extent that companies respond to publicity surrounding it and reconsider their policies, that is a genuine service.