New California Employer Case Regarding Compassionate Use of Marijuana in the Workplace

Hello Everyone!

Well, the California Supreme Court just today ruled that an employer is not obligated to accommodate an employee engaged in the compassionate use of marijuana. At issue in Ross v. RagingWire was whether an employer must retain as an employee an individual who fails a properly-administered drug test due to the compassionate use of medical marijuana.

On January 24, 2008, the California Supreme Court affirmed the decisions of the lower courts that dismissed Ross’s claim, and affirmed judgment in favor of RagingWire. Ross v. RagingWire Telecommunications, Inc. (Cal. Supreme Court 1/24/08).

Ross applied for work as an information technology professional with RagingWire. As part of the hiring process, RagingWire requires all employees to undergo a pre-employment drug test. Ross agreed to accept an employment offer with RagingWire, which was contingent upon him passing the mandatory drug test. He did so even though he was using marijuana under California’s Compassionate Use Act of 1996 to alleviate chronic back pain. When his drug test came back positive for marijuana metabolites, Ross’ employment was terminated after eight days on the job.

The trial court dismissed Ross’ complaint, and the California Court of Appeal affirmed that dismissal.

Ross set forth two arguments. First, he argued that RagingWire’s refusal to accommodate his compassionate use of marijuana was tantamount to disability discrimination under the California Fair Employment and Housing Act. In rejecting this argument, the Court held that the FEHA does not require employers to accommodate the use of illegal drugs, and that marijuana is an illegal drug under federal law. The California Supreme Court noted that “Plaintiff’s position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug.” However, the Court noted that it does not do so. Instead, the Court explained that what happened when the Compassionate Use Act was enacted was that it exempted medical users of marijuana and their primary care givers from criminal liability under two specifically designated state statutes. Indeed, the Court explained “[N]othing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.”

Second, Ross asserted, based upon RagingWire’s refusal to accommodate his use of marijuana, and that the termination of his employment was wrongful, in violation of public policy. The Court disagreed, again asserting that the Compassionate Use Act does not speak to employment law, and therefore does not articulate a public policy concerning marijuana use in the employment context.

Drug testing of employment applicants has become commonplace. While California law does permit such testing, there are certain requirements that employers must meet in order to comply with the law. Indeed, California’s Constitution contains an express right to privacy, which often comes into play when evaluating drug testing policies and procedures in the employment setting.

If you are interested in learning more about drug testing in the workplace, check out my podcast on this topic, which you can find at http://employerhelpcast.blip.tv/file/286718/

What do you think of this case? Let me know!