Termination of marijuana users OK - California high court confirms
January, 2008
The California Supreme Court recently confirmed that California's medical marijuana laws do not prevent an employer from enforcing otherwise legitimate anti-drug policies. In light of this new case, Ross v. Ragingwire, Inc., California employers may discipline or terminate all marijuana and other drug users, medical or otherwise, without fear of a wrongful termination or discrimination lawsuit.
Facts of Ross
Gary Ross, a medical marijuana user since 1999, was hired by Ragingwire in 2001. Pursuant to company policy, Ross was required 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 marijuana use. Ragingwire suspended, and later fired, Ross, despite his explanation that his use of marijuana was in accordance with the California's medical marijuana law, known as the "Compassionate Use Act."
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 and wrongful termination based on Ross's status as a "disabled person" and breach of contract to terminate only for cause. After losing at both the trial and appellate levels, Ross appealed to the California Supreme Court.
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. However, the Supreme Court held, that did not affect his employment claims. With respect to Ross's claim that his termination violated FEHA, the Court pointed out that "nothing 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." Instead, the Court observed that the Compassionate Use Act simply carved two minor exceptions to California's criminal statutes for uses of medically-approved marijuana. The Court further noted that even though the use of medical marijuana does not subject the user to prosecution for California state criminal violations, that conduct is illegal under federal law. Accordingly, the Court held, "the FEHA does not require employers to accommodate the use of illegal drugs," rejecting Ross's FEHA claim.
For similar reasons, the Court rejected Ross's wrongful termination and breach of contract arguments. Under California law, wrongful termination requires the employee to prove he or she was discharged "in violation of a fundamental public policy of the state." Given the Court's earlier conclusion that the medical marijuana law did not specify rights or obligations relating to employment, the Court held that Ragingwire had violated no such public policy when it terminated Ross.
What Ross means to California employers
Ross confirms that employers may enforce otherwise valid anti-drug policies. For now, a California employee's use of marijuana, albeit in compliance with the Compassionate Use Act, exposes that employee to termination. Note that other states have reached the contrary conclusion.
Even after Ross, employers are strongly urged to consult their Bullivant counsel for assistance in developing, implementing and enforcing drug-testing policies.