Californias Response to Pot on the Job

By Jeffrey Rivera-Carbone

Feb. 21, 2008

Imagine receiving a telephone call from the laboratory hired by your company to perform drug tests. The laboratory informs you that the employee you hired three days ago has tested positive for marijuana on the pre-employment drug screen. In following up with the employee, he advises that he only uses marijuana at home for medicinal purposes, as recommended by his physician, and gives you a copy of his medical marijuana identification card. Given California’s medicinal marijuana use laws, is an employer allowed to terminate the employee under these circumstances? The short answer is yes.

Employers are often faced with a clash between public policy and their company’s policies when considering whether to allow employees to use medical marijuana. Thirteen states have laws that allow for the use of marijuana for medical purposes ( Alaska, Arizona, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Rhode Island, Vermont and Washington). The general purpose of these laws is to eliminate the criminal liability to doctors, growers, sellers and users of medical marijuana. However, the U.S. government does not recognize any legitimate use for marijuana and considers it a controlled substance and illegal drug. The Supreme Court has approved of the government’s position in cases related to the arrest and conviction of persons who use marijuana under state medical marijuana laws and attorneys have prosecuted and have vowed to continue prosecution for the possession and distribution of marijuana, medicinal or otherwise.

This state and federal public policy contradiction presents employers with the dilemma of whether to allow the use of medical marijuana under state law or prohibit the use of medical marijuana pursuant to the federal drug-free workplace policy. Employers also need to consider whether disability discrimination laws would require accommodating an employee that uses medical marijuana. This is particularly challenging when current users of illegal drugs—and under federal law, marijuana is still illegal—are not protected by anti-discrimination law. At least in California, the courts recently gave us some guidance. In the recent case of Gary Ross v. RagingWire Telecommunications, Inc., the California Supreme Court ruled that an employer was within its rights to terminate an employee for testing positive for marijuana even though the employee was legally ingesting marijuana based on California’s medicinal marijuana law, which is referred to as the Compassionate Use Act. More specifically, the California Supreme Court confirmed that California’s anti-discrimination statutes do not obligate employers to accommodate medicinal marijuana users who might be considered “disabled.”

In the RagingWire case, the company offered Gary Ross a position as lead system administrator, conditioned upon satisfactory completion of a pre-employment drug screen. Ross submitted himself to the pre-employment drug test and, after three days on the job, got a positive result for marijuana. Ross had been using marijuana for a number of years (allegedly recommended by his doctor), to treat a disabling injury he suffered while serving in the U.S. Air Force. He gave the company a copy of his doctor’s written recommendation and stated that he only used marijuana during non-working hours, and off company premises. RagingWire revoked the offer of employment and terminated Ross’ employment.

Ross filed a lawsuit claiming that RagingWire violated California’s disability discrimination laws. He alleged his injury was a disability under California’s anti-discrimination laws. Ross further alleged that by not allowing him to ingest marijuana, the company failed to “reasonably accommodate” his disability. He also alleged that he was wrongfully terminated in violation of the public policy established by California’s Compassionate Use Act of 1996, which allows people to grow, smoke or obtain marijuana for medical needs with a doctor’s recommendation. Ross essentially argued that since it was legal in California for him to ingest marijuana, his former employer could not impede upon that right.

In 1997, the California Supreme Court had ruled that an employer may reject a candidate for employment if it lawfully discovers that the applicant “is using illegal drugs or engaging in excessive consumption of alcohol” (Loder v. City of Glendale, 14 Cal 4th 846 [1997]). The question that Ross’ case raised was whether the Compassionate Use Act required employers to accommodate medical marijuana use and whether the law otherwise protected the employment of medical marijuana users.

RagingWire argued that it did not violate California’s anti-discrimination laws or the Compassionate Use Act of 1996. The company argued both that California’s medicinal marijuana law was likely trumped by federal law that categorized marijuana as an illegal controlled substance without carved-out exceptions. Additionally, RagingWire argued that even if California’s medicinal marijuana laws were valid, there was no obligation extended to employers to accommodate marijuana users.

The California Supreme Court reasoned that Ross’ position “might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug.” Marijuana, however, is illegal under federal law. Thus, it is not possible to equate marijuana with a legally prescribed drug that would trigger the employer’s duty under the respective anti-discrimination laws. The California Supreme Court also confirmed its narrow view of the Compassionate Use Act as providing immunity from criminal liability.

The lesson from this case is that employers should clearly state the company’s position on medical marijuana in its drug-free workplace and drug testing policies. These policies must be reviewed to prohibit all illegal drug use, and not just use that occurs on the job and on company premises.

Medical marijuana laws are inconsistent with federal law, but for many states that provide for medicinal marijuana use, the issue of workplace accommodation is still unresolved. If there is no ruling by a state’s highest court, specific state law and legislative history should be analyzed to determine whether an employer has a burden to accommodate a medical marijuana user.

Alliance groups who support the use of medicinal marijuana will most likely continue to challenge employment decisions based on medicinal marijuana use. In California, at least for now, employers can exhale in relief and refuse to hire medicinal users of marijuana.

Workforce Management Online, February 2008Register Now!

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