LET COMPANIES DETERMINE JOB STATUS OF MEDICAL CANNABIS USERS

In an ideal world, government would have no say in the hiring
practices of private companies, so this 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 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 so (and being known to do so) invite unwelcome attention
from the feds?

The company that hired Ross in 2001 said it would consult with his
doctor, but when his pre-employment drug test came back positive, it
fired him. 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 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.