When his new boss at Ragingwire Inc. ordered Gary Ross to take a drug test, the recently hired computer tech had no doubt the results would come back positive for marijuana.
But along with his urine sample, Ross submitted a doctor's recommendation that he smoke pot to alleviate back pain – a document he figured would save him from being fired. It didn't, however, and Ross was let go eight days into his tenure because the company said federal law makes marijuana illegal no matter the use.
On Tuesday, the California Supreme Court is due to hear Ross' case, the latest example of the intensifying clash between federal and local authorities over marijuana use.
Ross, 45, contends that Ragingwire discriminated against him because of a back injury and violated the state's fair-employment law by punishing him for legally smoking marijuana at home.
He says he and others using medical marijuana should receive the same workplace protection from discipline that employees with valid painkiller prescriptions do. California voters legalized medicinal marijuana in 1996.
Eleven other states, including Alaska, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington state, have adopted similar laws and many are now grappling with the same sticky, workplace issues over drug use by employees smoking medicinal marijuana approved by doctors.
In Oregon, for instance, two competing bills on the issue died in that state's Legislature this year.
The nonprofit marijuana advocacy group Americans for Safe Access, which is representing Ross, estimates that 300,000 Americans use medical marijuana. The Oakland-based group said it has received hundreds of employee discrimination complaints in California since it first began tracking the issue in 2005.
“It's an extremely widespread problem,” said Joe Elford, the group's chief lawyer. At least one other similar workplace lawsuit have been filed in the state, but Elford has been advising the aggrieved to first file complaints with the state's Fair Housing and Employment agency. The agency issues “right-to-sue” letters after investigating complaints, giving a person up to a year to file a lawsuit.
“We're advising everyone to go slow encouraging them to wait for a decision by the Supreme Court,” Elford said.
Several national medical organizations and disability rights advocates have filed friend-of-the-court papers urging the Supreme Court to rule in Ross' favor.
Ross, who lives in Sacramento, said he permanently injured his back in 1983 while serving as a U.S. Air Force mechanic. He said it wasn't until 1999 that he found true pain relief with marijuana, though scientists are still split on the drug's effectiveness.
The American Medical Association advocates keeping marijuana classified as a tightly controlled and dangerous drug that should not be legalized until more research is conducted.
“I think I'm standing up for everybody else,” Ross said. “My motivation is that I don't like to lose and that medical marijuana is effective.”
So far, though, Ross has been losing.
Two lower courts have sided with Ragingwire's decision to fire Ross because federal law holds that marijuana is illegal in all guises.
Five current and former Democratic state legislators who argue that the lower courts misinterpreted a law they helped pass that banned smoking of medicinal marijuana at the workplace. The lawmakers said nothing in their law prevents employees with medical marijuana cards to smoke outside the workplace.
The lawmakers wrote that the state's fair employment law and the 1996 Compassionate Use Act legalizing medicinal marijuana, “authorize and protect the use of medical cannabis by employees away from the workplace and during nonbusiness hours, as exemplified by plaintiff-petitioner Gary Ross, and that the court of appeal's decision erred in concluding otherwise.”
Employers are fearful of falling productivity and that they open themselves to the wrath of federal officials, who are armed with a 2005 U.S. Supreme Court decision declaring that state medicinal marijuana laws don't protect users from criminal prosecution.
Ragingwire marketing chief Doug Adams declined to comment on the case.
Ragingwire, a small telecommunications company in Sacramento, has been joined in the Supreme Court by powerful corporate interests such as the Santa Clara Valley Transportation Authority and the Western Electrical Contractors Association Inc., who said companies could lose federal contracts and grants if they allowed employees to smoke pot.
The conservative nonprofit Pacific Legal Foundation said in a friend-of-the court filing that employers could also be liable for damage done by high workers.
“History abounds with cases of employers found liable,” the Sacramento-based foundation wrote, “because their employees were driving vehicles, operating heavy equipment or otherwise performing tasks made more dangerous by their being under the influence of alcohol or drugs.”