Vol. 23 No. 2- Smoking Medical Marijuana can cost you your Job

January 28, 2008

The California Supreme Court ruled, on January 24, 2008, in the case of Ross v. Ragingwire Telecommunications, Inc., that it does not violate one’s right of privacy, nor is it discriminatory, to fire an employee who uses marijuana for medical reasons.  Ross’ doctor recommended marijuana to treat chronic back pain and he used it while off duty, at home.  He was terminated after a pre-employment drug test came back positive for marijuana.  Ross sued his employer claiming disability discrimination under the California Fair Employment and Housing Act (FEHA) and a violation of public policy.

FEHA, Privacy and Illegal Drugs

The plaintiff argued that Proposition 215, codified as Gov. Code §11362.5, the Compassionate Use Act (CUA), gave him protections under FEHA, which prohibits an employer from discriminating against a person because of a physical disability or medical condition.  He 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 Court noted, however, that the CUA does not “address the respective rights and obligations of employers and employees.”

Furthermore, the Court ruled that the CUA did not give “marijuana the same status as any legal prescription drug,” and “no state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law.”   (Emphasis added.)  The Court noted that marijuana use conflicts with the employer’s policies and that “FEHA does not require employers to accommodate the use of illegal drugs.”  Additionally, referring to an earlier 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 job applicants’ state constitutional right to privacy.”

Federal Law and Marijuana

The Court made the specific point that the CUA only creates an exemption from prosecution, under California law, for those who meet the qualifications of medical users of marijuana.  ” California voters merely exempted medical users and their primary caregivers from criminal liability ….”  The Court returned frequently to the fact that marijuana is illegal under federal law.  “Marijuana, as noted, remains illegal under federal law…. Although California voters had no power to change federal law, certainly they were free … to view the possibility of beneficial medical use as a sufficient basis for exempting from criminal liability under state law patients whose physicians recommended the drug.”

California  Law and Marijuana

The plaintiff argued that by not requiring employers to accommodate the use of medical marijuana by employees, it “would eviscerate the right promised to the seriously ill by the California electorate.”  The Supreme Court disagreed, stating that “an employer’s refusal to accommodate an employee’s use of marijuana does not affect, let alone eviscerate, the immunity to criminal liability provided in the act.  We thus give full effect to the limited right to obtain and use marijuana granted in the act by enforcing it according to its terms.”

The Court further noted, in a footnote, that “the voters did not give medical users of marijuana complete immunity from criminal law,” and went on to point out examples, such as the prohibition of driving under the influence of marijuana and possessing large quantities of the drug.  The Court also identified that “the measure did not purport to change the laws affecting public intoxication with controlled substances or the law addressing controlled substances in such places as schools and parks.”  The Court also noted that “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.)


One question which has been raised on a number of occasions is what can a police chief or sheriff do if an officer informs him/her that the officer is using marijuana, off duty, on the advice of a doctor.  This case makes it clear that such activity is not protected and potentially subjects the officer to discipline, up to and including termination of employment.

This decision also adds to the argument, made by many of us who represent law enforcement agencies, that when a superior court judge dismisses a case pursuant to Proposition 215, and then orders the arresting officer to return the marijuana to the defendant, the order violates federal law.  The Supreme Court has stated, in this case, in several places, that “the drug remains illegal under federal law.”  Since that is true, we continue to contend that an order to return an illegal drug to a person who is not authorized to posses it, is an illegal order.

As many of you know, the City of Garden Grove has been litigating this issue in the case ofGarden Grove v. Superior Court (Kha).   The California Court of Appeal recently ruled that the order was lawful, since the drug is legal under California law, and the City had to return the dope.  That decision is being appealed by the City to the California Supreme Court and we believe this decision should be beneficial. The firm of Jones & Mayer submitted an amicus brief to the Court of Appeal, supporting the City, on behalf of the California State Sheriffs Association (CSSA), the California Police Chiefs Association (CPCA), and the California Peace Officers Association (CPOA).  We will do so again, this time to the California  Supreme Court.

As always, we urge that you confer with your agency’s legal counsel before taking action based on information set forth in this Client Alert.  If you wish to discuss the case in greater detail, please feel free to contact me at (714) 446 – 1400 or by e-mail at mjm@jones-mayer.com.