California Supreme Court: No Accommodation for Medical Marijuana
The California Supreme Court decided today that there is no duty under the Fair Employment and Housing Act to "reasonably accommodate" medical marijuana use as treatment for a "disability." The Court also held the plaintiff could not state a claim for wrongful termination in violation of public policy based on California's Compassionate Use Act, aka Prop. 215. The Legislature may pass a law amending FEHA to require accommodation of medical marijuana use, assuming the Governor would sign such a bill. Or, another initiative may be presented to the voters. Until then, though, employers may deny employment based on positive drug tests for marijuana, medical or otherwise. The case is Ross v. RagingWire Telecomm., Inc. The opinion is here.
I admit this is an especially nice post to write, considering I principally authored the employer's briefs at the Court of Appeal and in the Supreme Court. Shameless plug, I know, but this has been a long time coming! And a thank you to my former colleagues Marlena (Ct.App.) and Tim (S.Ct.) for their hard work on the briefs, and to my former partner, Rob, for arguing at the Supreme Court.
Greg
I admit this is an especially nice post to write, considering I principally authored the employer's briefs at the Court of Appeal and in the Supreme Court. Shameless plug, I know, but this has been a long time coming! And a thank you to my former colleagues Marlena (Ct.App.) and Tim (S.Ct.) for their hard work on the briefs, and to my former partner, Rob, for arguing at the Supreme Court.
Greg
Labels: Disability
posted by Greg at 10:34 AM
1 Comments:
Yesterday the California Supreme Court ruled against a medical marijuana patient who had been fired from his job because he tested positive for marijuana in a company drug test.
For patients who do not have to undergo the onerous and humiliating pee-in-a-cup or you will be fired or not hired ritual, this ruling has no direct impact. But for the many people whose livelihoods depend on being able to pass a drug screen, this is indeed a serious blow.
Like law enforcement’s successful attempt to terrorize elected officials by threatening to arrest them if they pass laws allowing medicinal marijuana in their communities, law enforcement has now succeeded in getting business owners to carry out their prohibitionist agenda by threatening them with loss of federal contracts, police raids and law suits. At least that is what lawyers representing business owners in the case claimed in their legal briefs arguing that it was okay for them to fire a legal medical marijuana patient for testing positive for marijuana.
In the 5-2 decision, the California Supreme Court unfortunately bought into this absurd argument. I am sure their legal reasoning was impeccable, however just because it makes sense legally doesn’t mean it makes sense rationally.
The total preposterousness of the decision is showcased by the fact that employees cannot be fired for having synthetic THC in their systems. So employees can take Marinol and the other synthetic THC products and its okay. That’s legal. But if they take natural THC, then the California Supreme Court rules it is okay to fire them.
Now what is the difference pharmacologically between synthetic THC and natural THC?
There is NO difference. They are biologically equivalent and are for all intents and purposes are the exact same thing with the exact same effects on the human body.
But the California Supreme Court has found that such a significant difference exists between synthetic THC and natural THC that employers must retain one and can fire the other. Of course they never cite any research report supporting that.
There is one significant difference between synthetic THC and natural THC and this difference is the telling point. Pharmaceutical companies can patent synthetic THC and make billions selling it, such as Marinol for $13 a pill. They can’t patent natural THC because it comes naturally from a plant so they can’t make a dime on it let alone the billions they are normally use to getting.
So who won in today’s ruling? Law enforcement who was out at the bars after work yesterday celebrating and the giant pharmaceutical companies who let out a collective sigh of relief that once again they had fought back the threat marijuana poses to their bottomline.
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