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Proposed Bill in California Would Protect Workers That Use Medical Marijuana

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A state senator has proposed a law that would make it illegal for an employer to fire someone with a legal prescription for marijuana who used it outside of work.

The bill, SB129, would bar employers from making a positive drug test a criteria for hiring and firing decisions if the employee was a registered medical marijuana user. It would not change existing laws about using marijuana during work hours or at the workplace.

The bill, proposed by Sen. Mark Leno, D-San Francisco, would exempt certain types of employment, including health care workers, school bus drivers and operators of heavy equipment. Leno said in an interview that his bill would follow federal law that lists which jobs are considered sensitive and were exempted.

If the bill passes, the law would supersede a 2008 California Supreme Court decision that ruled that a Sacramento electronics firm was within its rights to fire Gary Ross, a systems administrator who had used legally obtained marijuana to relieve chronic back pain.

“I do disagree with the State Supreme Court decision, but the court also requested that the Legislature clarify this issue,” Leno said. “We’re just doing what the court instigated.”

Leno proposed a similar measure in 2007 when he served in the state Assembly. It was ratified by both legislative branches but vetoed by then-Gov. Arnold Schwarzenegger. Leno said he hopes the bill would be ready to make it to the Senate floor by May and be ready for Gov. Jerry Brown’s signature in August.

Ali Bay, a spokesman for Leno, said the senator has not talked to Brown about this bill but was optimistic Brown would sign it.

Leno said he waited for a new administration in Sacramento before resubmitting his measure. “I had no indication Governor Schwarzenegger would have changed his mind,” he said.

The 2007 version of this law was opposed by the California Chamber of Commerce, the state’s largest business lobbying group, mostly on liability issues, Leno said. He said he plans to meet with pro-business groups to try to minimize the opposition this time.

Nick Johnson, a spokesman for the California chamber, said the group has not taken a position on the measure. He declined further comment.

The use of marijuana to alleviate medical conditions was legalized when California voters passed Prop. 215 in 1996. But Leno said the intent of the law was not to make those who did get prescriptions open themselves up to being fired or denied employment.

He said economic conditions exacerbate that issue.

“At a time with record-high unemployment, can we really afford to guarantee that another quarter of a million medical marijuana participants are denied work,” he asked.

The court case came from the 2001 firing of Ross by RagingWire Telecommunications Inc. Ross was a U.S. Air Force veteran who injured his back while in the service. He tried a number of painkillers before getting a prescription for marijuana, which helped.

Ross had been considered a good employee, but when he was fired for failing a drug test, he sued, claiming he was discriminated against for a disability.

William Floyd, an employment lawyer for the Riverside firm Best Best & Krieger, said it wasn’t uncommon for the Legislature to overrule a court decision. What could make this case different is that the state court also considered that Ross, while using marijuana legally in the state, was violating federal drug laws.

This could make it harder for the Legislature to overrule the decision, Floyd said.

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