Medical Marijuana Users Need Not Apply


The California Supreme Court has agreed to consider the question of whether the state's employment law protects medical marijuana users from losing their jobs for consuming cannabis. State law says employers may not fire people for legal off-the-clock activities (which presumably would include tobacco smoking). Medical use of cannabis is permitted by state law but prohibited by federal law, under the dubious but U.S.-Supreme-Court-endorsed rationale that it somehow constitutes interstate commerce. The Riverside Press-Enterprise (registration required) reports that

Workers who have been fired or disciplined for using medicinal marijuana have filed numerous complaints with the state, claiming their employers violated California labor law, which prohibits people from being punished for performing a legal act while off duty, said Dean Fryer, spokesman for the California Department of Industrial Relations.

But the state is not processing their complaints.

"We are not accepting any claims for discrimination regarding the use of medical marijuana because federal law makes it illegal and therefore it is not lawful off-duty conduct," Fryer said, adding that the California labor code does not distinguish between state and federal law.

As with job-related drug testing generally, I have mixed feelings about this issue. To fire someone simply because he uses marijuana, whether for medicine or recreation, seems irrational to me. The woman cited in the Press-Enterprise story–who uses cannabis to treat her glaucoma and was fired because she tested positive for marijuana, despite an unblemished work record–certainly was treated shabbily. But as a general rule, I think businesses should be free to hire and fire based on whatever criteria make sense to them (within the constraints set by contracts), even if that means some of them adopt stupid, unfair policies. (They have to bear the consequences of those policies, which might include public criticism, boycotts, and a disadvantage in attracting and keeping qualified workers.) Then again, there's no question that employers would treat marijuana use differently if marijuana were (completely) legal. Generally speaking, I think, they would worry about it only when it interfered with work. To the extent that there are legitimate concerns about impairment, they are no different in principle from the concerns raised by alcohol or (a closer analogy in this case) prescription drugs.

If patients are under the influence of marijuana during the work day, it might affect their ability to perform certain tasks, just as narcotic painkillers or anti-anxiety drugs might. (With marijuana as with Vicodin, patients who take the drug for symptom relief often report that they hardly feel the psychoactive effects.) But it sounds like the main issue for California employers is marijuana's legal status. A spokesman for the California Association of Employers told the Press-Enterprise the group advises its members "they do not have to balance a duty to accommodate an applicant or employee whose drug use impairs their performance and poses a potential liability should an accident occur." But he added (in the paper's paraphrase) that "employers could consider accommodating an employee or job applicant if there are no safety issues that are involved in their work. Those accommodations could also include steering the user toward a prescription drug such as Marinol, although medical-marijuana advocates argue the synthetic pharmaceutical is not nearly as effective." In other words, FDA-approved synthetic THC is OK, but THC in the federally forbidden plant is not.

The tyranny of federal law is especially clear in the case of Riverside County, which issues medical marijuana ID cards yet refuses to hire people who carry them.