A plumber with a valid medical marijuana prescription was denied work on a city project after testing positive for the drug, prompting a prominent San Francisco union boss to demand changes to a labor agreement.
Larry Mazzola Sr., a business manager for the UA Local 38 plumbers union, has initiated conversations with the general manager of the San Francisco Public Utilities Commission, Ed Harrington, to change language in a project labor agreement for the $4.6 billion Water System Improvement Program.
At issue is whether medical marijuana users should have certain protections when they fail drug tests. Mazzola’s effort began in January after the plumber was denied work.
Mazzola said the agreement’s substance abuse policy flies in the face of San Francisco values, since elected officials have time and again reaffirmed the rights of medicinal cannabis users, declared The City a medical marijuana sanctuary and created a comprehensive dispensary licensing program.
“This situation gives workers mixed signals,” Mazzola wrote in a Jan. 19 letter to Harrington.
A special committee that addresses labor issues will take up the matter next month.
“We appreciate Mr. Mazzola’s willingness to discuss his proposed amendment at our upcoming April 3 committee meeting,” SFPUC spokesman Tyrone Jue said. “We look forward to working with him to weed out any outstanding issues.”
Included in the project labor agreement signed in March 2007 is a substance abuse policy that says anyone who tests positive will not be permitted to work and could be fired.
In January, a group of plumbers was sent to an SFPUC job, but first each had to pass a drug test. One did not, and “solely on the ground that the drug [marijuana] was still in his system he was refused employment,” Mazzola said in the letter.
“Most significantly no questions were asked nor any test given him as to his ability to properly and safely perform the various tasks connected with the job,” Mazzola wrote.
The union’s own investigation determined the plumber had a valid medical marijuana prescription, and, “He informed us that he did not ingest any marijuana since Saturday night prior to his testing Wednesday — more than 72 hours later,” the letter said.
This example, Mazzola said, “underscores the inequities and inadequacies” of the labor agreement’s drug policy.
Mazzola has requested the substance abuse policy be amended to “eliminate the inequity and discrimination with respect to those individuals who have been issued medical marijuana cards by their medical doctor after receiving a medical certificate certifying their eligibility for use of marijuana for medical and health purposes.”
Such an amendment would be unprecedented and apply to all building trade members doing work on the Water System Improvement Program, a project expected to be complete in 2016.
A labor report on the project said as of March 2011 there were 4,592 pre-employment drug tests of people cleared for work, and 67 failed. Of those who failed, 24 tested positive for marijuana. Eleven refused to be tested.
No waivers for medical marijuana patients
November 1996: Voters approve Proposition 215, the Compassionate Use Act, which allows people to possess and use marijuana for medicinal purposes.
January 2008: California Supreme Court rules Prop. 215 doesn’t protect medical marijuana users from being fired for testing positive for the drug.
October 2008: Gov. Arnold Schwarzenegger vetoes state Sen. Mark Leno’s bill to protect most employees from being fired if they test positive for marijuana but have a valid prescription.
January 2011: Leno abandons SB 129, a bill similar to his 2008 effort.
Several attempts to change state law went up in smoke
Efforts to pass a state law to prevent employers from discriminating against workers who use medical marijuana when not on the job have failed.
In 1996, California voters approved Proposition 215, the Compassionate Use Act, which allows people to possess and use medical marijuana with a prescription from a doctor. However, the law has not protected workers from termination if they test positive for the drug.
That’s because in January 2008, the California Supreme Court ruled in the Ross v. Ragingwire Telecommunications Inc. case that employers could fire workers for using marijuana for medical reasons.
State Sen. Mark Leno, D-San Francisco, has twice attempted to pass legislation to end job discrimination for medical marijuana users. Leno said “to support the court decision” is to believe that California voters “intended to benefit only unemployed people, and that’s just beyond imagination.”
In 2008, Leno was able to pass a bill overturning the court’s decision, but it was vetoed by then-Gov. Arnold Schwarzenegger. The governor said he was “concerned with interference in employment decisions as they relate to marijuana use. Employment protection was not a goal of the initiative as passed by voters in 1996.”
Leno gave up in January on a similar bill, SB 129, due to a lack of support in the Legislature. He blames the California Chamber of Commerce’s lobbying efforts for his defeats.
In the case of SB 129, the chamber said protections for medical marijuana users would force employers to violate federal law, which deems cannabis an illegal drug, and could imperil federal contracts or grants. The chamber also said employers would be in a tough spot if employees showed signs of using the drug at work.
Meanwhile, medical marijuana users continue to face job discrimination.
“It happens all the time; it’s a regularly recurring problem,” said Kris Hermes, a spokesman for Americans For Safe Access, a national group advocating for medical marijuana rights.
— Joshua Sabatini