CSSA Magazine Article- The Use of Medical Marijuana and One’s Job

Your employee goes to your Human Resources department and
informs them that he has been advised by his doctor to use a
particular medication in order to treat a medical condition
from which he suffers. He informs the HR department that he
will consume the drug while off duty and it will not interfere
with his job performance. When informed of this, you terminate
the employee stating that you don’t approve of the use of that
particular medication.

On January 24, 2008 the California Supreme Court, in a 5-2 decision, ruled that under certain circumstances such action is lawful, despite the fact that the recommended drug is legal under the laws of California.  In the case of Ross v. Ragingwire Telecommunications, Inc., 132 Cal.App. 4th 590, the Court held that firing the employee is not a violation of the employee’s right of privacy, it is not wrongful termination, nor is it discriminatory under the California Fair Employment and Housing Act (FEHA, Gov’t Code 12900 et seq.), if the recommended medication is marijuana.

Plaintiff Gary Ross suffers from back injuries sustained while serving in the United States Air Force.  It is undisputed that his physician recommended the use of marijuana, pusuant to California’s Compassionate Use Act (H&S Code 11362.5), which was implemented following the passage of Proposition 215 by the voters of California. Neither his disability, nor his use of medical marijuan, interfered with his ability to perform all of the essential functions of his job.  Because of his medical condition he is a qualified individual with a disability under FEHA and, as such, an employer must make reasonable accomodations for his disability.

When Ross was hired he was required to submit to a medical examination which included a drug test.  He informed the clinic of his use of medical marijuana, and provided a recommendation from his physician.  After the test proved positive for marijuana, he was terminated from employment.  He sued alleging the claims referenced above.  The superior court granted the employer/defendant’s demurrer and dismissed the suit.  The Court of Appeal upheld the lower court and the California Supreme Court affirmed that decision.

FEHA

Pursuant to FEHA, it is “an unlawful employment practice … for an employer, because of the physical disability [or] medical condition … of any person, to refuse to hire or employ the person … or to bar or to discharge the person from employment….”  The Court held that “the FEHA inferentially requires employers in their hiring decisions to take into account the feasibility of making reasonable accomodations.”  Plaintiff argued that would include allowing him to use marijuana for medicinal purposes.

Plaintiff argued that “just as it would violate FEHA to fire an employee who uses insulin or Zoloft, it violated [the] statute to terminate an employee who uses a medicine deemed legal by the California electorate upon the recommendation of his physician.”

The Supreme Court disagreed, stating that “Plaintiff’s position might have merit is the Compassionate Use Act gave marijuana the same status as any legal prescription drug.  But the act’s effect is not so broad.  No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users.”  The Court further states that “the FEHA does not require employers to accomodate the use of illegal drugs.”

Pre-Employment Drug Testing

The Court noted that marijuana use conflicts with the employer’s policies which prohibit the use of illegal drugs by its employees.  In referring to an earlier California Supreme Court decision, Loder v. City of Glendale (1997) 14 Cal. 4th 846, the Court stated that “the employer’s legitimate concern about the use of illegal drugs … also led us … to reject the claim that pre-employment drug testing violated the job applicant’s state constitutional right to privacy.”

The Court further held that California voters were “free to view the possibility of beneficial medical use…” of marijuana and, therefore, exempt those users from criminal prosecution – under state law – when the drug was recommended by their doctors.  However, said the Court, that “did not compel the voters to take the additional step of requiring employers to accomodate marijuana use by their employees.”  The act speaks exclusively to the criminal law and does not effect employment law.

Medical Marijuana and the Law

As pointed out by the Court, use and possession of marijuana is still prohibited under the federal law.  It is, in fact, still illegal under California law, and only creates a defense against prosecution under certain circumstances.  Also, as the Court noted, “the voters did not give medical users of marijuana complete immunity from criminal law.”

There are still prohibitions against driving under the influence of marijuana, even if used for medical purposes.  Neither, said the Court, did “the measure … purport to change the laws affecting public intoxication with controlled substances or the law addressing controlled substances in such places as schools and parks…” or in jails.  Additionally, “police officers can still arrest anyone for marijuana offenses.  Proposition 215 simply gives those arrested a defense in court, if they can prove they used marijuana with a doctor’s approval.” (Emphasis in original.)

Conclusion

There are ongoing disputes raised as a result of the passage of Proposition 215.  Those disputes include whether the drug must be returned to the defendant after a possession charge is dismissed under the Proposition; are dispensaries, as opposed to collectives which are referred to in the enabling legislation, legal under state or federal law; can cities lawfully issue business licenses and permits for marijuana dispensaries; and so forth.

However, one issue which is now resolved is that an employer can refuse to hire a person who uses marijuana -because it is still illegal under our federal law.  As such, employers – both public and private – can still decide that they do not want to employ individuals who choose to violate the law.

In an area such as this, it is imperative that one seeks legal advice before undertaking any action since it, obviously, can and may lead to litigation.