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Employment

Postby palmspringsbum » Sun Jun 25, 2006 1:28 pm

The Patriot-News wrote:WILLIAMSPORT

Schools can fire pot user, judge says

Friday, June 23, 2006
BY JOHN BEAUGE
For The Patriot-News


WILLIAMSPORT - A Lycoming County judge said an arbitrator exceeded his authority when he ordered a suburban Williamsport school district to reinstate a custodian who admitted using marijuana outside work.

Judge Kenneth D. Brown ruled in favor of the Loyalsock Twp. School District, which contended that rehiring Connie Hamilton would "re-insert an admitted drug user into an elementary school environment."

The 28-year employee, who had an unblemished work record, tested positive for marijuana after an on-the-job injury in 2005 but claimed she did not use the substance during school hours.

Brown noted in his opinion that the arbitrator, Harrisburg attorney Louis R. Martin, thought Hamilton's conduct was egregious enough to approve a nine-month suspension without pay.

In a November decision, Martin ordered Hamilton be rehired because the school board failed to refute her claim that she was not a regular user of marijuana and district policy does not restrict employees' behavior while off duty.

The school district appealed Martin's finding to County Court.

District solicitor E. Eugene Yaw had argued the arbitrator's decision contravenes the school board's right to remove an employee for violation of school laws, and Brown ruled the district's interpretation of its drug-free policy was applicable.

Hamilton suffered a facial injury Jan. 14, 2005, when a piece of equipment fell on her at the school.

She went to the hospital the next day but left after being told she needed to submit to a drug test.

Four days later, district business manager Gerald L. McLaughlin directed Hamilton to take a blood test, but she offered not to pursue a worker's compensation claim and said she would pay her medical costs.

McLaughlin rejected the offer because a claim already had been opened. He said he ordered Hamilton five times to take a drug test before she did so on Jan, 26, 2005, after being told she could not report for work until she did.

According to court documents, the results came back positive. Hamilton offered to enter rehabilitation, which is an option under district policy, to save her job.

The school board in February 2005 voted to fire her.



<span class=postbold>See Also</span>: California | Legal pot can make jobs go up in smoke

<span class=postbold>See Also</span>: California | DPA files brief on behalf of leading health organizations in medical marijuana job discrimination case

<span class=postbold>See Also</span>: Oregon | Court sides with employer in medical marijuana case
Last edited by palmspringsbum on Sun Aug 06, 2006 4:29 pm, edited 1 time in total.
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Tobacco, the New Workplace Drug

Postby budman » Sat Jul 29, 2006 11:18 am

Oswego County Business wrote:Special Report - August/September 2006
<hr>

Tobacco, the New Workplace Drug
by Laura Thompson
Oswego County Business


Random drug testing in the work environment has become a widely accepted fact of employment across America. While once considered controversial and invasive, most of the American workforce now accepts the possibility of random worksite drug testing. When applying for a job today, it is common to be told drug testing may be required.

A recent trend is expanding the concept of "drug" use in the workplace as well as in the privacy of your own home. As anti-smoking laws and legislation sweep the country, some employers are taking matters a step further. They are classifying tobacco as an undesirable substance in their workforce — and they are prohibiting their employees from its use, at work or at home.

The most recent player in the United States to announce a tobacco-free workforce is Scotts Miracle-Gro. In December the company announced it will begin random testing of workers for tobacco use. Scheduled to begin in October 2006, positive results from these random nicotine tests could result in employee termination.

While CEO Jim Hagedorn has emphasized that the company’s focus is on employee health, this policy is viewed as a drastic measure by many. Tobacco is not an illegal substance and this policy creeps into the privacy of employee homes and off-hours.

Hagedorn has repeatedly stated the company will be working closely with all smoking employees to assist them in cessation of tobacco use. The company has recently invested in employee fitness centers and programs, all geared toward a healthier, more active workforce.

Still, those employees unable or unwilling to comply with the October deadline face termination, unless they work in a state that offers legal protection to smokers. Miracle-Gro is headquartered in Marysville, Ohio, with facilities, offices and warehouses scattered across the country. They employ 5,300 people, nationwide.

Twenty-nine states, and the District of Columbia, offer some legal protection to smokers against employer harassment or dismissal due to tobacco use. New York is among them. No federal legislation protects smokers.

The move to designate tobacco as a workplace drug is driven in part by escalating healthcare and insurance costs. Smokers, as a group, tend to develop prolonged and expensive illnesses linked to tobacco use, such as cancer and respiratory diseases.

Public opinion is behind such policies, for the most part. As tobacco related laws and restrictions sweep the country, limiting tobacco use and access has become widely accepted. Most of New York state smoking cessation programs, for example, emphasize limiting public use of tobacco and raising the cost of purchasing the same.

While Scotts is the largest US employer to announce such a policy, it is not the first.

Weyco, a medical benefits administration firm, located in Okemo, Mis., initiated a similar policy in September, 2003. Recently, four members of its 190-person workforce refused to be tested for tobacco use. That refusal cost them their jobs.

In November of 2005, The Centers for Disease Control banned smoking on all of its campuses as well as in government vehicles. The CDC, however, stopped short of prohibiting tobacco use amongst its work force.

In December of 2005, The World Health Organization announced it would no longer hire smokers in any of its international worksites. No plans for nicotine testing were announced, however; WHO plans to rely on a direct question added to the normal application. Additionally, no action has been announced for those persons already employed who use tobacco products.

In New York state, the law which offers smokers some protection is titled "The Lawful Activities Statute." This is a loosely written statute which has not, to date, been legally tested. It was designed to protect employees from employer supervision of their private lives, and legal activities.

According to Walt Pellegrini, of the NYS Governors Office of Employer Relations, no specific division has enforcement jurisdiction over this statute.

"If an employee were dismissed for tobacco use in their private, off-duty time, they would have to go to the courts and raise this law as a shield against their dismissal," said Pellegrini. He further noted he knows of no case where this has occurred, to date. "This law is untested, to the best of my knowledge."

Pellegrini went on to say he disagreed with employer attempts to control employee use of legal products, on their own time.

"A policy that discriminates against a legal act with no nexus to the job is bad business," he said. "It smells—and not of smoke. I’d love to see this policy challenged."

Pellegrini added that there are many employers who will ask prospective employees if they smoke. "It’s not illegal, in New York state, to not hire someone because they smoke. Smoking is not a protected item. Likewise, an employer can refuse to hire someone because he doesn’t like the way the person looks. We can’t control that."

Legal issues arise, however, when an established employee is suddenly subjected to employer controls over private and legal actions.

"What’s next?" asks Pellegrini. "We’re firing you because you’re a Scout leader, and we disagree with their policies toward homosexuals? Or because you belong to a certain church? If we allow this type of life invasion by employers, where does it end?"

Another official within the NYS hierarchy, who asked not to be identified, disagreed.

"Doing something dangerous is not a civil liberty," said this official. "Smoking marijuana is not a civil liberty. Riding a motorcycle without a helmet is not a civil liberty. Smoking is a dangerous activity."

This official went on to say, "You don’t have a right to a particular job. Your employer is not telling you that you can’t smoke. They are saying if you want to do that, you can’t work here."

The official also acknowledged the possible legal problems with a tobacco free employer stance. "Alcohol, for example, is also legal, and equally implicated in expensive health problems, when abused. Will the next step involve an Alcohol Free workforce, and random testing for the same? How about unhealthy diets? We don’t know where this will lead."

Theoretically, under state employment law, an employee dismissed for engaging in a legal activity would be eligible for unemployment insurance payments. Numerous attempts to speak with officials in both local and state offices, however, went unanswered.

Forty-five million Americans continue to smoke.

Smoking-related health care costs, nationally, exceed $167 billion, annually. This total includes both lost productivity costs and actual healthcare costs.

Smoking, on average, reduces life expectancy by 14 years.


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Calif. Supremes Hear From Friends in High Places on Employee

Postby Midnight toker » Thu Aug 17, 2006 7:02 pm

Law.com wrote:Calif. Supremes Hear From Friends in High Places on Employee's Marijuana Use

Mike McKee
The Recorder
August 17, 2006

<table class=posttable align=right width=128><tr><td class=postcell><img src=bin/marijuana_leaf_hand.jpg></td></tr></table>Eight days after accepting a systems administration job with Sacramento's RagingWire Telecommunications Inc. in 2001, Gary Ross was fired for testing positive for marijuana.

The 43-year-old father of two admitted he smoked pot at home for back pain, but explained it was legally prescribed by his doctor under the state's Compassionate Use Act. His new bosses backed their decision, however, by citing federal law that still criminalizes marijuana.

Five years later, the dispute shows no sign of losing steam as an employment discrimination suit filed by Ross awaits a full hearing by the California Supreme Court. Although oral arguments haven't been set, a host of high-powered amici curiae have already stoked expectations with hard-hitting briefs on both sides of the issue.

Their arguments could go a long way in helping the court decide whether Ross' state-approved treatment regimen trumps an employer's right to discharge employees for violating federal law.

While the state Supreme Court has held that the Compassionate Use Act -- approved by voters in 1996 -- provides an affirmative defense for using marijuana as medicine, the U.S. Supreme Court has declared medical necessity no exception to the federal Controlled Substances Act.

Last week, 10 state and national medical organizations and two well-regarded disability rights groups took up Ross' cause by filing two separate briefs in which they argued RagingWire violated the state's Fair Employment and Housing Act by firing Ross for following doctor's orders.

In addition, five state legislators took the highly unusual step of filing a third brief, claiming that a 2003 bill they authored was meant to require employers to accommodate off-duty, off-premises pot use by employees with valid prescriptions.

All three briefs were filed -- at the request of Ross' attorneys -- to counter opposing arguments submitted earlier by RagingWire's own heavyweight amici.

Sacramento's conservative Pacific Legal Foundation filed papers in late July maintaining state law can't force employers to retain workers whose judgment could be impaired by drug use.

And two other groups -- the Santa Clara Valley Transportation Authority and the Western Electrical Contractors Association Inc. -- pointed out in separate briefs that employers could lose certain state and federal funds or contracts if they condone pot use by employees.

Both the trial court and Sacramento's 3rd District Court of Appeal ruled in Ross' case that employers aren't required to retain workers who use federally banned drugs.

Jamerson Allen, a partner in Jackson Lewis' San Francisco office who represents RagingWire, said Monday he couldn't comment about the amici without his client's approval. He never called back.

But Joseph Elford, chief counsel of Oakland-based Americans for Safe Access, who is co-counsel for Ross, said the amici's participation proves the case involves an issue "that resonates nationally."

Elford was especially pleased that the legislators had taken a stand because they authored Senate Bill 420, which three years ago clarified when employers are permitted to prohibit medicinal pot use by employees.

In their brief, former Sen. John Vasconcellos and current Assembly members Mark Leno, Loni Hancock, Jackie Goldberg and Paul Koretz said the legislation was meant to let individuals smoke pot at home, while giving employers the power to banish it from the workplace.

"We believed that the voters did not intend for the Compassionate Use Act to apply only to unemployed medical cannabis patients," Oakland solo practitioner Robert Raich wrote on their behalf, "but to all qualified patients, including those who could be productive members of the workforce."

Ross' medical amici -- among them the American Medical Women's Association, the California Nurses Association and the Berkeley-based Drug Policy Alliance -- argued a variation of the legislators' theme.

Daniel Abrahamson, director of legal affairs for the DPA, accused RagingWire of improperly intruding into a doctor-patient relationship and forcing Ross to choose between his job and medical treatment.

The disability rights amici -- Protection & Advocacy Inc. and Equal Rights Advocates -- made the further argument that the 3rd District's decision would enable employers to deny jobs to medicinal pot users without showing there would be any adverse impact on their businesses.

However, Deborah LaFetra, principal attorney for the PLF, said in briefs that there's definitely a measurable impact on businesses. Arguing for RagingWire, she said it has been proven that marijuana impairs smokers' cognitive abilities, which exposes employers to greater liability.

"History abounds with cases of employers found liable," she 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."

The high court might also be swayed by the Santa Clara Valley Transportation Authority's warning that public agencies could be denied federal and state grants if they don't prohibit pot use.

"If there is going to be a catastrophic loss of funding for these agencies," Santa Clara VTA Assistant General Counsel Richard Katzman wrote, "then that decision should be out in the open for the Legislature or the electorate" to decide.

How much weight the high court will give the amici arguments in Ross v. RagingWire Telecommunications Inc., S138130, isn't possible to gauge, but the justices count on them for a third-party view of the issues.

At the very least, the amici have given the court a lot to think about.

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Fenwick Employment Brief

Postby palmspringsbum » Fri Feb 22, 2008 10:46 am

Mondaq.com wrote:
United States: Fenwick Employment Brief - February 8, 2008


Mondaq.com
13 February 2008
Article by Victor Schachter and J. Carlos Orellana

<span class=postbigbold>Employers Need Not Accommodate Employees Who Use Medical Marijuana</span>

In a significant ruling for employers, the California Supreme Court recently held that an employer is not required to accommodate an employee who uses medical marijuana. In Ross v. Ragingwire Telecommunications, Ross used medical marijuana to treat his chronic pain at the suggestion of his physician. He applied to work for Ragingwire and received an offer as a systems administrator, subject to a drug test. Ross informed the clinic performing his drug test that he was using medical marijuana, and he gave the clinic a copy of his doctor’s recommendation to that effect. After the results of his drug test came back positive, Ragingwire terminated Ross’s employment. Ross sued, claiming that Ragingwire had violated the California Fair Employment and Housing Act ("FEHA") by failing to make a reasonable accommodation for his disability (and also thereby violating public policy).

The Supreme Court rejected Ross’s claims, holding that the Compassionate Use Act of 1996 did not give medical marijuana users protection under FEHA. Emphasizing that marijuana is still illegal under federal law—even when used for medicinal purposes— the Court wrote, "FEHA does not require employers to accommodate the use of illegal drugs." The Court took particular note of the potential for abuse of marijuana and the employer’s legitimate interest in whether an employee uses the drug. The Court also rejected Ross’s argument that he was terminated in violation of public policy because there is no public policy in the employment context protecting his right to use medical marijuana.

The Court’s opinion in Ross is significant because, until now, employers faced grave uncertainty with the question of how to treat disabled employees who use medical marijuana. While the legislature may change the Compassionate Use Act in the future to apply explicitly to the employment context, employers need not tolerate use of illegal substances by their employees and may continue the even-handed application of anti-drug policies.



<span class=postbold><i>See Also:</i></span> Canada: Drug and Alcohol Policies vs. Human Rights: The Latest Chapter
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