A recent decision of the California Court of Appeal confirmed that employers need not tolerate marijuana use by employees – even physician-approved use under California's medical marijuana law. Ross v. Ragingwire Telecommunications, Inc. (2005) C043392. In light of this decision, employers may terminate a marijuana-using employee without fear of liability for wrongful termination or disability discrimination.
Facts of Ross
Gary Ross was a medical marijuana user since 1999. In September 2001 Ragingwire offered Ross a job. Ragingwire had a company policy requiring Ross to take a pre-employment drug test. Ross took the test and began working for Ragingwire a few days later, but before he received the results of his drug tests. His drug test disclosed THC, the main chemical found in marijuana.
The employer immediately suspended Ross after only three days of work. Ross explained that his use of marijuana was in accordance with the Compassionate Use Act. Nevertheless, the employer terminated Ross' employment after only eight days of work for testing positive for an illegal substance.
Ross sued Ragingwire arguing that he was wrongfully terminated in violation of public policy. Specifically, he argued Ragingwire failed to comply with the Fair Employment and Housing Act (FEHA), which requires employers to make reasonable accommodations for persons with disabilities. Ross also asserted causes of action for employment discrimination based on Ross' status as a "disabled person" and breach of contract to terminate only for cause.
The Ross Court's Holding
There was no question that Ross was a qualified disabled person, nor was there any question that his use of medical marijuana complied with the Compassionate Use Act. With respect to Ross' claim that his termination violated FEHA, the court pointed out that "[n]othing in FEHA precludes an employer from firing, or refusing to hire, a person who uses an illegal drug." Even though the use of medical marijuana does not subject the user to prosecution for California state criminal violations, that conduct is illegal under the federal Controlled Substances Act. (21 U.S.C. §§ 841, 844.) The court disagreed with Ross' claim that federal law [the Controlled Substances Act] could not be used to decide a FEHA claim. In short, the court held, Ross' conduct remained illegal despite the California medical marijuana law, and thus remained a perfectly proper basis for his termination by his employer.
The court specifically declined to extend the protections of FEHA to medical marijuana users. Nothing in the statute as it exists requires such an extension, and, the court held, it is up to the legislature or electorate to amend FEHA to compel employers to make reasonable accommodations for an employee's use of medicinal marijuana.
What Ross means to California employers
For now, a California employee's use of marijuana, albeit in compliance with the Compassionate Use Act, exposes that employee to termination. The Ross case may, however, be merely one development in the ongoing debate over employee rights of medical marijuana users. Some states (including Oregon, see Oregon courts expand the employment rights of medical marijuana users) have reached the contrary conclusion. Thus, employers should strongly consider consulting their legal advisers for assistance in developing drug-testing policies and in the management and termination of employees using medical marijuana.
Please contact your Bullivant attorney for additional details or questions.