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Medical marijuana and employers

When Gary Ross was ordered to take a drug test at his new job, the recently hired California computer tech submitted, along with his urine sample, a doctor’s recommendation that he smoke marijuana to alleviate back pain.

But Mr. Ross was fired anyway, eight days into his tenure.

California voters legalized medicinal marijuana by a whopping majority in 1996. But his employer, a small Sacramento telecommunications outfit called Ragingwire, said federal law makes marijuana illegal, regardless.

On Tuesday, the California Supreme Court heard Mr. Ross’ case, the latest example of the intensifying clash between federal and local authorities over marijuana use.

Mr. 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.

Eleven states, including Nevada, have enacted laws similar to California’s.

So far, two lower courts have sided with Ragingwire’s decision to fire Mr. Ross because federal law holds that marijuana is illegal in all guises, and a 2005 U.S. Supreme Court decision declared that state medicinal marijuana laws don’t protect users from prosecution. The nonprofit Pacific Legal Foundation said in a friend-of-the court filing that employers could also be liable for damage done by workers under the influence of pot.

“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.”

Our sympathies lie primarily with Mr. Ross. There is no evidence his supervisors found his job performance erratic or unsatisfactory. He was not surreptitious — he followed the recommended legal procedures and forthrightly presented his doctor’s form at the same time he complied with the humiliating demand for his urine test — itself an example of the way the fruitless and vastly expensive “War on Drugs” has forced dehumanizing unfunded mandates on private employers.

While it’s usually preferable for a court to lay down broad statements of principle, rather than pussyfooting on a “case by case” basis, the specific circumstances of this case are also fairly compelling.

An employer could reasonably argue it must bar from employment even those using “normal, prescribed” painkillers if impairment on the job was likely to endanger the safety or others — if the job involved, for instance, flying an airplane, driving a truck or even washing windows while dangling from a scaffolding.

But Mr. Ross is a computer desk jockey. If he’s barred from employment here, where is a person with his health problems — an injury sustained in the service of his country, no less — supposed to seek work?

The elephant in the corner, here, is the doctrine of federal supremacy.

Have we strayed this far from the Founders’ intent, with today’s notion that the will of the federal government trumps the wisdom of each state — states that were never supposed to be uniform divisions of a homogenized central regime, akin to the mere regional “departments” of Napoleon’s imperial France? Or were the Hamiltonians lying, all along?

Why can’t Gary Ross “vote with his feet,” moving to a jurisdiction within the United States that has decided to take a different path, legalizing the medical use of marijuana? Why can’t any of us?

The California court has 90 days to decide the case. What it ought to rule is that state law trumps federal law in this matter, under the 10th Amendment — and that, for Californians, its ruling supersedes that of the U.S. Supreme Court, under the same never-repealed plank of the Bill of Rights.

But don’t hold your breath.

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