Mark I. Schickman, Editor and Cathleen Yonahara, Assistant Editor
Freeland Cooper & Foreman LLP

Vol. 17, No. 23
February 11, 2008

DISABILITY DISCRIMINATION

Employee's prescription up in smoke ― a bummer for pot patients in California

Aaron N. Colby and Leonora Schloss

The California Supreme Court has concluded that an employee fired for medicinal marijuana use can't sue his former employer for disability discrimination or wrongful termination under California law. Neither the text nor the history of the Compassionate Use Act of 1996 addresses the respective rights and duties of employers and employees. The Act merely shields patients from criminal liability under state law. Further, the Act isn't a fundamental public policy supporting a wrongful termination claim.

Background

The Compassionate Use Act of 1996, which California voters approved through Proposition 215, "gives a person who uses marijuana for medical purposes on a physician's recommendation a defense to certain state criminal charges." In 2005, however, the U.S. Supreme Court determined that federal law continues to prohibit marijuana possession, even by medical users.

Because of injuries sustained while serving in the U.S. Air Force, Gary Ross suffers from back spasms, which makes him a qualified individual under California's Fair Employment and Housing Act (FEHA). In 1999, he began using medicinal marijuana under the Compassionate Use Act.

In 2001, Ragingwire Telecommunications, Inc., offered Ross a job and required him to take a drug test. Before taking the test, he notified the testing facility of his medicinal marijuana prescription. After testing positive for marijuana, he presented his medicinal marijuana prescription to Ragingwire and explained that he used marijuana to relieve chronic back pain. The company fired him because his positive drug test was contrary to its drug policy.

Ross then sued, alleging that Ragingwire violated the FEHA's disability discrimination prohibition and wrongfully terminated him in violation of public policy. He claimed his disability and marijuana use didn't affect his job performance and pointed out that he had worked in the same industry since 1999 and had never received complaints despite his medical marijuana use. He also denied using or possessing marijuana at work.

The trial court threw out Ross' claim at the very start of the case because pot use is illegal under federal law, and the court of appeal came to the same conclusion.

Supreme court's decision

On appeal to the supreme court, Ross alleged that Ragingwire violated the FEHA by discharging him and failing to make a reasonable accommodation for his back injury and preferred treatment method. In rejecting his claim, the court stated that the Act doesn't give marijuana "the same status as any legal prescription drug." According to the court, that would be impossible "because [marijuana] remains illegal under federal law." The court examined the FEHA's text and legislative history and found that the Act merely exempts individuals from state criminal liability; it doesn't speak to employment law.

Ross also argued that allowing employers to avoid accommodating medicinal marijuana use eviscerated rights promised to medicinal users. The court noted, however, that the electorate could have addressed medicinal marijuana in the employment context but didn't. Further, the court's 1997 decision in Loder v. City of Glendale implicitly recognized that the FEHA doesn't require employers to accommodate illegal drug use. Therefore, Ross couldn't state a claim for disability discrimination based on Ragingwire's refusal to accommodate his marijuana use.

Aside from disability discrimination, Ross contended that his termination "violated fundamental public policies" contained in the Compassionate Use Act and the FEHA. By a 5-2 vote, the court ruled that he couldn't state a public-policy wrongful termination claim. According to the court, the firing couldn't be a public-policy violation because the Compassionate Use Act doesn't address employment issues. Therefore, Ragingwire lacked notice that employers could be required to accommodate medicinal marijuana use.

The court also dismissed Ross' argument that his discharge violated his right to "determine whether or not to submit to lawful medical treatment" under the California Constitution, noting that Ragingwire's decision affected only his employment ― not his access to medicinal marijuana. Ross v. Ragingwire Telecommunications, Inc. (California Supreme Court, 1/24/08).

Bottom line

For many years, California employers have been faced with a conflict between their antidrug policies and state law each time a medicinal marijuana user tested positive during a drug screen. This ruling clarifies that you may lawfully consider positive test results in making an employment decision.

While you aren't obligated to take action against someone who you discover uses medicinal marijuana, you still should carefully consider hiring or retaining the individual. You potentially expose yourself to liability from third parties and other employees for the on-the-job acts of drug-using employees, and allowing marijuana use may weaken your ability to defend against such a claim. Likewise, an employer with federal contracts that knows about an employee's medicinal marijuana use puts those contracts at risk.

If you allow an employee using medicinal marijuana to continue working, then the employee should be held to the same standards applied to employees who take prescription medication. If some employees are retained or hired after testing positive for marijuana and others aren't, you must always make sure there's a legitimate, nondiscriminatory reason for the termination or refusal to hire. Otherwise, you potentially face a discrimination claim.

Editor's note: Immediately after the supreme court issued this decision, San Francisco Democrat Assemblyman Mark Leno announced that he will introduce legislation designed to revise this holding and extend the Compassionate Use Act's protection to the employment context. Sacramento has a history of responding to restrictive employment rulings in that manner (for example, reversing the effect of judicial limitations courts placed on employees who invoked the protections of the Americans with Disabilities Act and California's age discrimination statute). We will keep you posted as the effort wends its way through the legislature.

The authors may be contacted at Sedgwick, Detert, Moran & Arnold, LLP, in Los Angeles, aaron.colby@sdma.com or leonora.schloss@sdma.com.

Copyright 2008 M. Lee Smith Publishers LLC

The contents of CALIFORNIA EMPLOYMENT LAW LETTER are intended for general information and should not be construed as legal advice or opinion. Readers in need of legal advice should retain the services of competent counsel. The State Bar of California does not designate attorneys as board certified in labor law.