High Hopes for Medical Pot Users

[PFlynn]

California - It is almost certain that the 56 percent of California voters who approved Proposition 215 in an attempt to legalize medical use of marijuana did not intend for employers to discriminate against persons who take advantage of the law they passed.

As it has evolved since passage, the 1996 initiative lets cities and counties issue medipot usage cards to users who smoke the weed to ward off pain caused by ailments from migraine headaches to a wide variety of cancers. Where they exist, the cards can only be obtained with a doctor's recommendation.

With that background, the question before the state Supreme Court earlier this year was whether an employer can fire a worker for using medical marijuana with a doctor's recommendation.

Given that court's longtime background as a bastion of civil liberties, most recently seen in a gay marriage decision very much in line with its tradition of ensuring Californians have even more rights than the U.S. Constitution guarantees, the answer was surprising.

Yes, the court said, a worker can be fired for using medipot with a doctor's permission even if that use has zero effect on his or her job performance.

"The Compassionate Use Act (Proposition 215) does not eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug," said the 5-2 majority opinion written by Justice Kathryn Mickle Werdegar.

She somehow thought she was backing up that statement by adding that "Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions." What about legal drug use, as defined by California voters?

The case itself was totally new judicial ground. Because California and only a few other states have okayed any form of legal medical marijuana use, no similar case has reached the U.S. Supreme Court, the only venue whose decisions form a binding precedent for the top state courts.

It's clear the court majority reacted with a knee-jerk against any kind of pot use.

That's essentially what dissenting Justices Joyce L. Kennard and Carlos Moreno said in their minority opinion. The court ruling "renders illusory the law's promise that responsible use of marijuana" will not be penalized, they said.

In this case, neither employer RagingWire Communications of Sacramento nor anyone else ever claimed that computer technician Gary Ross was less than competent during the 11 days he worked there.

Rather, company lawyers said the firm feared it might be subject to federal raids if Ross stayed.

Federal agents have staged hundreds of raids on city- or county-sanctioned medical marijuana clinics and arrested many medipot growers. But never on those who employ users.

Prosecutors maintain federal laws making all uses of pot illegal trump the state initiative and any local ordinance designed to make it work. The U.S. Supreme Court agreed in 2005, ruling Proposition 215 does not exempt medical marijuana users from prosecution, no matter how severe their illness.

So when a standard pre-employment test detected Ross' pot use, the state's high court said, RagingWire was free to bounce him even though he had shown his medipot card prior to the drug test.

When Ross sued, the company responded that it would "arguably be complicit in an activity that's illegal under federal law" and might lose federal contracts if it kept Ross.

All this left medipot activists frustrated until the state Assembly in late May passed a bill essentially revoking the court decision. This putative law would let medipot patients work, like anyone else. But they could not smoke on the job.

Yet to be determined is whether the state Senate will go along.

If it does, Gov. Arnold Schwarzenegger - an admitted pot smoker with no medical justification during his bodybuilding and movie days - would have to be a complete hypocrite to veto it.

If that law doesn't pass, the message delivered by several medical marijuana backers at a news conference just after the court decision came down will stand. "People are going to endure pain and suffering because Supreme Court justices don't feel marijuana has any medical value. It doesn't matter what citizens and patients say. It doesn't matter what doctors say."

What's more, the dissenting justices were absolutely correct in saying the decision, if it stands, means medipot users can be punished for trying to kill their pain. They would then continue to face what Kennard called a "cruel choice" between losing their jobs or giving up the only medication that provides significant comfort in coping with some illnesses and with cancer chemotherapy.



News Hawk: PFlynn - http://www.420magazine.com/
Source: Long Beach Press-Telegram (CA)
Copyright: 2008 Los Angeles Newspaper Group
Contact: speakout@presstelegram.com
Website: Thomas Elias: High hopes for medical pot users - Press-Telegram

[Dr. 215]

I really hope the State Senate will go along with it. I would love to go to work and not fear a drug test. Luckly i have never had one at my current work. Cant wait to see where this goes!

[Jimbo]

Do you guys realize that, from someone who lives in the SE, it sounds like their fighting for something in a whole other country...Holy crap!, it's as if this place is just some strange planet that has a big fence around it and you can't escape from the dark into the light.
I just keep sending in those letters, and getting these strong replies, like I am asking to come over and shag his wife..."were worried that the kids will think it's alright to smoke pot or something" or "Although it's unfortunate that 92 year old Kathryn Johnson was killed during a no-knock warrant raid, they had been investigating that house for a long time...yada-yada-yada!!! I just wish anything positive that's cannabis related would filter over to the rest of us...Especially when the roots are too deep to move a thousand miles away...so I guess were forked until the people on this end get there heads out of their asses and do something about it!!!

You go California!!! Show the rest of this country what real freedom is like!!!

[TKEster]

As an Oregon Medical Marijuana patient-grower (with little to no patience), I'd have to say that the freedom from worry about getting nailed by the local police, state police, county sheriffs, etc, more than compensates for still being subject to arrest, torture, and incarceration, followed by more torture, rape, etc, by the Federal Drug Enforcement Agency (bless their hearts). Really, here in Oregon, the people who are trying to screw things up for the rest of us are the OMMP people who are 1) lower,socioeconomically (the rich take pharmacueticals) 2) not too bright, and 3) possess criminal tendencies to go along with economic hardship. They grow more than is allowed, and sell the excess, sometimes using their children as mules. So stupid, and so NOT medical. This allows savagely conservative politicians like our (not) beloved Kevin Mannix to keep up his unrelenting campaign to destroy the OMMP.

The OMMP, is really just a license to grow under very limited conditions. We don't have dispensaries, yet, because they've noticed that in CA where they have them, the people end up paying almost, if not more, for medicine than they would on the street in the black market. It tends to lend itself to economic abuse, and one of the tenets of the OMMP is that the medicine should be affordable for all who need. Patients are allowed to have caregivers and growers, and to grow for others. A patient is NOT LIMITED in how many patients he can grow for, whereas for the time being, a grower is limited to four. I could have 16 patients, have six plants over 12 inches tall for each, (99) and slide in under what is thought to be the magic number for the DEA, of 100. Over that they tend to start sniffing around a lot because the potential for abuse is so high. But really, if I had the space, I could grow for 1000 people, legally (under state law). The going "production cost exchange" between grower and patient is about $250 per month for one ounce per month. The grower or Patient-Grower can be compensated for his costs in producing the medicine...what the amount becomes is between the grower and the patient.

[Stoney Girl]

This ruling should be appealed. It violates ADA.

Re: OR Court of Appeals Win

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I can't stress the importance of the Americans with Disabilities Act enough in the medical marijuana community. As disabled people, we have civil rights that are protected by the ADA, and those protections have teeth: those who violate those rights can be fined heavily by the Feds. Here is what the court ruled in the Emerald Steel Fabricators, INC case on the ADA issues:

3. ORS 659A.112(1) provides:
"It is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because an otherwise qualified person is a person with a disability."

ORS 659A.112(2) provides, in part, that an employer violates subsection (1) of the statute if it does any of the following:

"(c) The employer utilizes standards, criteria or methods of administration that have the effect of discrimination on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.

"* * * * *

"(e) The employer does not make reasonable accommodation to the known physical or mental limitations of an otherwise qualified person with a disability who is a job applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.

"(f) The employer denies employment opportunities to a job applicant or employee who is an otherwise qualified person with a disability, if the denial is based on the need of the employer to make reasonable accommodation to the physical or mental impairments of the employee or applicant.

"(g) The employer uses qualification standards, employment tests or other selection criteria that screen out or tend to screen out a person with a disability or a class of persons with disabilities unless the standard, test or other selection criterion, as used by the employer, is shown to be job-related for the position in question and is consistent with business necessity."

[Stoney Girl]

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I asked an ADA consultant for an opinion on the Emerald Steel case. His company has been the ADA consultation firm of record for the State of California for the last 10 years. Here is what he told me:

Having 14 years experience professionally consulting government and private businesses with the ADA I thought I should make a quick response.

ADA 101

First, the state cannot change the intent nor the written federal laws and regulations of the Americans with Disabilities Act (ADA). That is, the State must at least meet the federal requirements, and may exceed these with their own, but cannot lessen the Act.

Most people think of ADA as Parking and Ramps. Although these items are an important factor there is much more to the Act besides physical barriers. It is also about policies, procedures, and attitudes.

The ADA is a Civil Rights issue, not one of medications, treatments or drugs. The ADA simply states that persons with disabilities shall have equal access to Programs, Services and Activities otherwise offered to any other member of the public. To single out any type of treatment or disability is directly against the ADA. This is what the court stated and is in fact in line with Federal regulations which the state must adhere to. Violations come with stiff penalties and loss of federal funding.

To single out a type of treatment then singles out many disabilities as allowed by the MMJ program. Who would this affect (what type of disability are you singling out)? This is the same as putting MMJ program participants on the back of the bus (segregation). This type of thinking is exactly what the ADA is trying to abolish. Your first concern should be for the view you have on persons with disabilities. From my experience in assisting with compliance and training, I have found that attitudinal barriers are by far the biggest hurdle.

Violation of a Civil Right is not the answer and the Legislature cannot change this.

The real answer to this issue is to re-schedule medical marijuana so that a Doctor can properly prescribe it. This would then allow for the control and supply of MMJ rather than dealing in these grey areas.

As for the employer, the current Marijuana testing methods need to be reviewed. Current testing can show traces of the drug for up to 6 months after exposure. The effect of the drug only lasts for 1 to 4 hours depending on strength and dosage. In short there is no current test used generally by private employers that can detect if a person is "Under The Influence" of marijuana. This should be a primary concern that is addressed by private business sector and most certainly those big testing companies that make all the money from them (but have little interest in this area of development).

Perhaps the private sector can adopt what our military has learned about the value of "Impairment Testing" over a simple chemical analysis of the last 6 months of life to quantify if a person is Under the Influece of Marijuana or in fact "Impaired".

Mike Mullins (Co-Founder / CIO Disability Access Consultants, Inc.)