LEGAL POT USE CAN MAKE JOBS GO UP IN SMOKE

Decision: The State Supreme Court Agrees to Decide Limits for Workers
and Employers.

Donna Dixon found out the hard way that a state law allowing her to
use marijuana for glaucoma didn't keep her from getting fired from a
casino job after a positive drug test.

In 1996, California voters passed the Compassion Use Act that allowed
the cultivation, transportation and use of marijuana by patients and
caregivers with a doctor's recommendation.

It did not, however, include job protection, said Michael Shapiro of
the University of Southern California School of Law, an expert in
constitutional issues.

The California Supreme Court this month agreed to hear the case of
Ross v. Ragingwire Telecommunications to decide whether employers can
fire employees for off-duty use of marijuana in accordance with state laws.

The justices have not set a date to hear the case.

Workers who have been fired or disciplined for using medicinal
marijuana have filed numerous complaints with the state, claiming
their employers violated California labor law, which prohibits people
from being punished for performing a legal act while off duty, said
Dean Fryer, spokesman for the California Department of Industrial Relations.

But the state is not processing their complaints.

"We are not accepting any claims for discrimination regarding the use
of medical marijuana because federal law makes it illegal and
therefore it is not lawful off-duty conduct," Fryer said, adding that
the California labor code does not distinguish between state and federal law.

Clarity Sought

Dixon, the mother of two teenage boys, was fired earlier this year
for testing positive for marijuana during a random drug test. She
worked in the Pechanga Resort & Casino for almost three years, first
as a housekeeper and later counting money.

Pechanga representatives did not respond to requests for an
interview, but an arbitration agreement between Dixon and the tribe
said Pechanga employees are subject to discharge in the event of a
positive drug test.

Dixon, 50, said she is optimistic the California justices will decide
in favor of medicinal users, who use the drug to treat symptoms of
chronic or debilitating illnesses such as migraines and cancer.

"I want clarity. There are a lot of people who want clarity on this,"
Dixon said from her Lake Elsinore-area home.

Court Ruling

Some employers say the issue was clarified when the U.S. Supreme
Court ruled in June that state laws do not protect
medicinal-marijuana users from federal laws that make such behavior criminal.

Jim Richardson, regional director of the California Association of
Employers, said companies were concerned about how to handle
employees' medical-marijuana use until that decision.

The not-for-profit employers association of 500 members assists
small-to-medium companies with human-resources issues. "Our
association is now able to give (our members) assurance they do not
have to balance a duty to accommodate an applicant or employee whose
drug use impairs their performance and poses a potential liability
should an accident occur," Richardson said.

He said, however, that employers could consider accommodating an
employee or job applicant if there are no safety issues that are
involved in their work.

Those accommodations could also include steering the user toward a
prescription drug such as Marinol, although medical-marijuana
advocates argue the synthetic pharmaceutical is not nearly as effective.

Under a mandate from the state, Riverside County began issuing
identification cards for medicinal medical users on Dec. 1. The card
alerts police that the holder has the appropriate documentation to
use and transport marijuana.

Riverside County, which has about 17,000 employees, is closely
monitoring the court cases, said the county's director of human
resources, Ron Komers.

And even though the county is issuing the cards, job applicants and
employees of Riverside County are disqualified from employment for
using marijuana -- even if they use the substance with the
recommendation of a physician, Komers said.

"We are an interesting situation," Komers said. "Because we do
receive federal funds we are subject to federal transportation
guidelines to fire or discipline somebody who utilizes an illegal substance."

Conflicting Laws

Advocates for medicinal marijuana say it is a mistake to confuse
federal criminal laws with state employment laws when marijuana is
legitimately being used to treat a person's disability.

"No person should lose their job solely because they use medical
marijuana," said Nikos Leverenz, associate director of the Drug
Policy Alliance in Sacramento, which supports medical-marijuana use.
The alliance urged the state Supreme Court to hear the case of Gary
Ross, a computer systems administrator who was terminated after
testing positive for marijuana.

He said he used the drug at home to alleviate chronic back pain.
"Workers and job applicants with disabilities may be compelled to
choose between employment opportunity and medical treatment," the
alliance argued in a 12-page letter filed with the court.

Bruce Mirken, director of communications for the Marijuana Policy
Project, said advocates are not suggesting employers don't have a
right to be concerned about productivity, safety and workplace performance.

"Obviously they do," Mirken said, adding that many employers may not
have revised their decades-old drug-use policies in light of new laws
allowing medical-marijuana use.

Dixon said she told her employer about her use of marijuana from the
day she was hired until she was fired from the $12.40-an-hour job at Pechanga.

"I had a good work record, good write-ups. I was in no danger of
being fired, but after that (drug test) it was like I had the
plague," Dixon said. "They took a person who worked every day -- a
law-abiding person -- and turned me into a welfare case by taking away my job."

Dixon appealed a Pechanga denial of unemployment benefits and prevailed.

The arbitrator, Stephen B. Chan, agreed that Dixon was candid about
her marijuana use and concluded she was "discharged for reasons other
than misconduct."

Since being fired, Dixon believes she was disqualified from two solid
job prospects, one for a large supermarket chain and the other for a
large soda pop company, after mentioning her use of medical marijuana
during job interviews.

"It is about principles," she said. "The people of this state said it
is OK for me to use marijuana as long as me and my doctor agree. I am
exercising my legal rights. Why should I lie?"

Safety Concerns

Critics say pre-employment and random drug tests are an invasion of
privacy, performed almost solely to weed out marijuana users, even
though alcohol use poses more of a workplace hazard.

All a urine drug test tells you is that an individual has used a drug
within the past six weeks and one of the drug residuals that remains
in a person's system longest is marijuana, said Dr. David Bearman, a
Santa Barbara physician helping to lead a national campaign to
legitimize marijuana for medicinal uses.

"The most significant drug of abuse is alcohol and alcohol is cleared
relatively rapidly from the urine. This test cannot tell you about
the drug most likely to interfere with an employee's job
performance," Bearman contends.

Richardson of the employers association said drug testing is an
important safety tool and the courts have upheld its use.

"Drug testing provides employers a means of deterring people who use
illegal substances from entering the workplace and removing employees
who may pose a danger to themselves and/or others," Richardson said.

[Sidebar:]

MARIJUANA LAWS

1996

California Compassionate Use Act: Allows patients and primary
caregivers to cultivate, transport and use marijuana for medical
conditions with a doctor's recommendation.

2003

SB 420: Permits medical-marijuana use to treat symptoms of AIDS,
anorexia, cancer, chronic pain, glaucoma, migraines, seizures, severe
nausea and other illnesses. The law requires the state to maintain a
voluntary identification card program. Allows possession of no more
than 8 ounces of dried marijuana.

2005

U.S. Supreme Court rules that patients in states with
compassionate-use laws may still face criminal prosecution for
transporting and using marijuana. California Attorney General Bill
Lockyer said the ruling does not overturn California law.

Riverside County begins issuing medical-marijuana identification
cards. San Bernardino County is expected to begin the
identification-card program in January.

2006

California Supreme Court is expected to decide whether employees can
be fired for off-duty use of medicinal marijuana.