California’s Highest Court Fails Drug Test

The question of workers rights vs employer rights came up smack in the middle of the medical marijuana debate.  The justices got it wrong (NYTimes):

The ruling, a 5-to-2 decision that affirmed the findings of lower state courts, involved a former Air Force mechanic, Gary Ross, who injured his lower back in a fall off an airplane wing in 1983. In 1999, a doctor, acting under the state’s Compassionate Use Act, prescribed marijuana in an effort to relieve Mr. Ross’s pain.

The act, approved by voters in 1996, legalized the use and sale of marijuana to those with a chronic illness or infirmity.

Two years after he began using the drug, Mr. Ross was fired from a job as a systems administrator with a telecommunications company after failing a drug test.

Mr. Ross filed suit, contending that his dismissal violated state laws barring wrongful termination and discrimination based on disability.

But the state’s highest court firmly rejected that argument on Thursday, saying that the act deals solely with criminal prosecution, not terms of employment.

This was a poorly considered opinion on the part of the court:

“The Compassionate Use Act does not eliminate marijuana’s potential for abuse or the employer’s legitimate interest in whether an employee uses the drug,” Justice Kathryn M. Werdegar wrote.

Potential for abuse does not equal abuse.  If that is a sufficient condition for termination, then couldn’t the same be said of every prescription medication on the market?  Is there a single painkiller medication which cannot be abused in some way?

The second half is of interest, especially when viewed through the prism of a conservative group’s argument in favor of the ruling:

The Pacific Legal Foundation, a conservative, free-enterprise group, praised the decision as a victory for “safe, drug-free workplaces.”

“You don’t want employers to be trying to figure who is impaired and who is not,” said Deborah J. La Fetra, a lawyer for the group.

“They need to have a bright-line, no-drugs-in-the-workplace rule.”

That could apply to any prescription medication.  So the question becomes, is it ok for employers to target those who are ill?

The justices ostensibly  focused on the “Compassionate Use Act”.  Of what practical purpose is the act, if one must be unemployed to use marijuana as medication?  Protecting workers rights is clearly in the spirit of the law.  The act the justices should have focused on was the Americans With Disabilities Act.

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