Calif. Firms Can Fire Medical Marijuana Users

Said Ross: "What we're fighting here is the stigma of the history of the '60s against the elderly generation that's in power."

Part of the confusion in California stems from blurring distinctions between criminal and civil law covering the workplace. The majority opinion noted that Californians voted only to decriminalize marijuana use, saying that "the voters were entitled to change the criminal law without also speaking to employment law."

But while federal criminal law still bars marijuana across the board, employers would not necessarily run afoul of federal law by employing people who use marijuana away from work, said Noel Ragsdale, an expert on employment law at the University of Southern California.

Ragsdale said the 1988 federal drug-free workplace act requires employers to certify that they have a policy against employees abusing drugs in the workplace. "That, I think, is not implicated in a situation where someone is taking medical marijuana at home and then coming to work," she said

Hermes said technology exists to test employees not simply for evidence of having taken marijuana, but for levels that would indicate whether they are impaired while on the job.

"I don't think the new technology is cheap," he conceded.

The ruling stands to affect some 200,000 Californians estimated to use marijuana under the recommendation of healers.

"They have an impossible choice, just as the defense says: You can live with excruciating pain, and work. Or you can get relief the act says you can get, and not work," Ragsdale said.

"It's a real visceral blow to any kind of real ability to realize the benefits of that Compassionate Use Act."