Today the California Supreme Court heard arguments in a case brought by a computer programmer who was fired after testing positive for marijuana even though his use of the drug, which he takes to relieve chronic back pain, is authorized by state law. Gary Ross, who has a doctor's recommendation to use marijuana, argues that his employer, Ragingwire, violated the state's fair employment law by firing him for taking his medicine. He says medical marijuana users should get the same exemption from drug-free workplace policies that is required for employees with prescriptions for narcotic painkillers. Ragingwire says marijuana is different, since it remains illegal for all uses under the federal Controlled Substances Act.
I have the same mixed feelings about this case that I do about employer drug testing generally. On the one hand, freedom of contract means companies should be allowed to hire and fire based on criteria that make sense to them, even if they seem unfair and unreasonable to me. On the other hand, it is quite clear that employers would not worry about marijuana use that does not impair job performance (or actually improves it, as is likely the case for Ross) the way they do now were it not for the irrational pharmacological distinctions drawn by the government. Since drug tests detect marijuana use within the last few days (or weeks in the case of frequent smokers), they do not indicate impairment, so in terms of safety firing someone who tests positive for pot is like firing someone because he drank a few beers over the weekend. Insisting that a computer programmer (as opposed to, say, an airline pilot or truck driver) never smoke pot, even on his own time, seems especially inane. And in this case, the role of the war on drugs is obvious, since Ragingwire's rationale for firing Ross is based on the federal government's refusal to recognize marijuana's medical utility.