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If Prop. 64 passes, will testing positive for pot still get you fired?

Fresno man says he was fired for medical marijuana use

Ray Marin, who is taking part in a test by UC San Francisco, and has a medical marijuana card, says he was fired by his employer even though he alerted the employer to a possible positive result for drug testing. Should Proposition 64 pass, it lik
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Ray Marin, who is taking part in a test by UC San Francisco, and has a medical marijuana card, says he was fired by his employer even though he alerted the employer to a possible positive result for drug testing. Should Proposition 64 pass, it lik

Ray Marin has a genetic liver disease that claimed his mother’s life in 2007. Because his body has difficulty filtering out toxins, he cannot drink alcohol or take opioid pain killers for a back injury. And so, with his doctor’s blessing and following all pertinent state laws, he used medical marijuana vapor to find relief.

A few weeks later, he was fired from his job at a Madera winery. He had failed a drug test upon returning to work, causing him to lose a position he had held for five years and, crucially, his medical benefits.

“I am screwed in all ways even though I did everything right,” Marin said. “They made me feel like I was the dirt of the dirt.”

Marin, a 45-year-old father of two, was fired in August, but he held out hope that his union would be able to smooth things over. He received a letter this week that dashed those hopes. He had broken federal law, the letter stated, so the union couldn’t do anything for him. Several local lawyers told him the same.

“Nobody wants to help,” Marin said. “Nobody wants to do anything.”

Nobody wants to help. Nobody wants to do anything.

Ray Marin, fired from his job for using medical cannabis

With California voters likely to approve recreational marijuana use through Proposition 64 in Tuesday’s general election, pot use is likely to increase exponentially in the next few years. So will Marin’s situation – fired for using a state-legalized substance – repeat itself after Proposition 64?

Probably.

Shelley Bryant is an attorney who specializes in employment law at his Fresno firm, Bryant Whitten LLP. He said that the California Supreme Court repeatedly has ruled that employers have a right to conduct pre- and post-employment drug screenings and make personnel decisions accordingly.

Proposition 64 has a clause that confirms that the new law would not force employers to amend drug-screening policies: “Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict or pre-empt  the rights and obligations of public and private employers to maintain a drug and alcohol free workplace  or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees.”

Marin said he feels cheated by another California initiative, Proposition 216, which legalized medicinal marijuana in 1996. He believes the state has failed to protect patients from their employers, and this problem likely will worsen should Proposition 64 pass.

Marin is a patient at the University of California, San Francisco’s medical campus in Fresno. He is part of a research program there for his nonalcoholic steatohepatitis, or fatty liver disease. The disease often deteriorates into late-stage cirrhosis, which can be fatal without a liver transplant.

He was diagnosed in March. He took as much time off as he could, but eventually had to take extra unpaid time off through the Family and Medical Leave Act. Around that time, Marin also threw his back out.

Because of his disease and involvement in the research program, he was not allowed to take any pain medication. The medical cannabis helped him relax but did little to dull the pain, so Marin stopped using it shortly after trying it.

Marin said he told his employer after taking the drug test that he likely would test positive and shared his medical marijuana paperwork. He also offered to go on a lengthy probationary period with regular drug tests.

Proposition 19 would have legalized recreational marijuana in California in 2010. It was narrowly defeated at the polls.

Most of Marin’s job at the winery centered on adding different chemicals during the various aging processes, but he did sometimes have to drive a forklift. He understands that working while impaired by marijuana would be a huge safety risk – something he said he never intended to do.

Marin’s situation sheds light on another cloudy area in the marijuana debate. Drug tests confirm use, but they do not indicate impairment, as blood-alcohol tests do. Marin’s discharge papers do not indicate he was impaired at work, and yet he lost his job.

This patch of gray is also a concern for law enforcement, which worries about how to measure the impairment of drivers suspected of using marijuana.

Employers could choose to amend their policies after Proposition 64, but that does not appear likely. Several prominent local employers had a different response when asked if they would revisit drug-testing policies should Proposition 64 pass.

The State Center Community College District plans to revisit its policies, as it does whenever state law changes.

A spokesman for Fresno County said the county signed a resolution opposing Proposition 64 and noted that the initiative does not require any employer to change its policies.

A California Department of Corrections spokesman said it was too early to answer the question and noted that the state has strict drug-testing standards for corrections officers.

Community Regional Medical Center said it would look to the California Hospital Association for guidance, but it doesn’t anticipate that it will change a pre-employment screening policy that prohibits hiring anyone who tests positive for marijuana.

Bryant, the employment attorney, said California would likely have to enact special legislation changing employment law to open an avenue for people wishing to sue for discrimination over marijuana use. Even if the federal law banning marijuana is changed, which Bryant thinks is possible given that nine states have marijuana initiatives on their ballots this year, a new law would be needed.

“There might be some movement in federal law, but I don’t see any movement in the employment arena,” Bryant said. “(Changing federal law) is not going to change employment law.”

Marin said he understands he has no legal avenue. He is trying to rebuild his life. He lost his only means of income and said he cannot claim unemployment benefits because he was fired for a drug offense.

He hopes that sharing his story will help prevent other patients or recreational users from suffering a similar fate.

“The day I lost my job – it felt like I was having a nervous breakdown,” Marin said. “It affected my relationship with my girlfriend. I was the breadwinner, and now I am having to scrape together money to survive.”

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