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CALIFORNIA EMPLOYERS ARE NOT OBLIGATED

TO ACCOMMODATE MEDICAL MARIJUANA

On January 24, 2008, the California Supreme Court ruled that an employer is not obligated to “reasonably accommodate” an employee’s medical marijuana use as treatment for a “disability.” Ross v. RagingWire Telecomm, Inc., 2008 Cal. LEXIS 784 (January 24, 2008). Barring an amendment to the California Fair Employment and Housing Act (“FEHA”), employers are free to deny employment based on positive drug tests for marijuana, regardless of whether the employee alleges that the drug is prescribed by his or her treating physician.

Ross v. RagingWire Telecomm, Inc.

Gary Ross is a former employee of RagingWire Telecomm, Inc. (“RWT”), who suffers from back strain and muscle spasms as a result of injuries he sustained while serving in the United States Air Force. Ross’ back condition qualifies as a protected “disability” under the Fair Employment and Housing Act (“FEHA”), and he is eligible for various governmental disability benefits.

In 1999, Ross began to use medical marijuana prescribed by his treating physician as authorized by the Compassionate Use Act of 1996. See California Health & Saf. Code §11362.5. In 2001, RWT offered Ross a job as a lead systems administrator. In connection with the job offer, RWT also administered a drug test. When the drug test came back positive for tetrahydrocannabinol (THC), a chemical found in marijuana, RWT suspended Ross.

Ross responded to the suspension by giving RWT a copy of his physician’s recommendation for marijuana and explained to RWT’s human resources director that Ross used marijuana for medical purposes to relieve chronic back pain. RWT’s representative told Ross that RWT would call his physician and verify the recommendation. Shortly thereafter, RWT advised Ross that it had elected to terminate his employment due to his active use of marijuana.

Ross sued RWT in state court, alleging wrongful termination in violation of public policy, and that RWT violated the FEHA by discharging him without making reasonable accommodations for his disability. See Cal. Gov. Code §12940(a). Ross alleged that his disability and use of marijuana to treat pain did not affect his ability to do the essential functions of the job for which he was hired. Ross further alleged that he had worked in the same field since he began to use marijuana and has performed satisfactorily, without complaints about his job performance.

In a 5-2 decision, the California Supreme Court held that neither the FEHA nor the Compassionate Use Act prohibits an employer from denying employment based on a positive test for marijuana use. The Court held that the Compassionate Use Act “merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes.” No state law could completely legalize marijuana for medical purposes because marijuana remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users (see Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001)). Because the FEHA does not require employers to accommodate the use of illegal drugs, the Court held that RWT had a right to terminate Ross based on his positive drug test.

The Court also rejected Ross’ wrongful termination (public policy) claim predicated on the provisions of the Compassionate Use Act. In so doing, the Court once again emphasized that “the operative provisions of the Compassionate Use Act do not speak to employment law.” Rather, the sole purpose of the Compassionate Use Act was to exempt medical marijuana from criminal prosecution under state law. Accordingly, “given the Compassionate Use Act’s objectives and the manner in which it was presented to the voters for adoption, [the Court had] no reason to conclude the voters intended to speak so broadly, and in a context so far removed from the criminal law, as to require employers to accommodate marijuana use.”

Practical Considerations

Ross is welcome news for employers, as it eliminates one of the many grey areas in the enforcement of workplace drug testing policies. As a matter of law, an employer is free to deny employment to an employee who tests positive for marijuana use. Employers should keep in mind, however, that drug testing policies create a host of problems that are not addressed by the Ross decision. Improper use or application of such policies may be grounds for liability on various theories, such as invasion of privacy, infliction of emotional distress, defamation, wrongful termination, or violation of state and federal laws that protect recovering drug or alcohol abusers. Employers are cautioned to consult with experienced employment law counsel prior to implementing any drug testing policy.