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Editor: Katharine Van Tassel
Akron Univ. School of Law

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Thursday, January 24, 2008

Medicinal Marijuana and the Workplace: The Drug is Still Illegal

Today, the California Supreme Court ruled that the California Compassionate Use Act of 1996 did not prevent an employer from firing a new employee who failed a preemployment drug test.  The case is Ross v. Ragingwire Telecommunications, Inc., S138130 (CA Jan. 25, 2008),   Workplace Prof Bog reports further and provides excerpts from the opinion,

Plaintiff, whose physician recommended he use marijuana to treat chronic pain, was fired when a preemployment drug test required of new employees revealed his marijuana use. The lower courts held plaintiff could not on that basis state a cause of action against his employer for disability-based discrimination under the California Fair Employment and Housing Act . . .

We conclude the lower courts were correct: Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions . . . .

Plaintiff’s position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act’s effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users (see Gonzales v. Raich, supra, 545 U.S. 1, 26-29; United States v. Oakland Cannabis Buyers’ Cooperative, supra, 532 U.S. 483, 491-495).  Instead of attempting the impossible, as we shall explain, California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees. . . .

http://lawprofessors.typepad.com/healthlawprof_blog/2008/01/medicinal-marij.html

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