PIHRA Scope - Spring 2008 - (Page 21) LEGAL CORNER Medical Marijuana California’s Response to Pot on the Job By Jeffrey R. Thurrell & Javier Rivera Carbone, Fisher & Phillips LLP receive a telephone call from the laboratory hired by the company to perform drug tests. The laboratory informs you that the employee you hired three days ago, has tested positive for marijuana on the preemployment drug screen. In following up with the employee, he advises you that he only uses marijuana at home for medicinal purposes, as recommended by his physician, and gives you a copy of his medical marijuana identification card. Given California’s medicinal marijuana use laws, is an employer allowed to terminate the employee under these circumstances? The short answer is “yes.” In the recent case of Gary Ross v. RagingWire Telecommunications, Inc., the California Supreme Court ruled that an employer was within its rights to terminate an employee for testing positive for marijuana even though the employee was legally ingesting marijuana based on California’s medicinal marijuana law referred to as the Compassionate Use Act. More specifically, the California Supreme Court confirmed that California’s anti-discrimination statutes do not obligate employers to accommodate medicinal marijuana users who might be considered “disabled.” In RagingWire, the company offered Gary Ross a position as You lead system administrator, conditioned upon satisfactory completion of a preemployment drug screen. Ross submitted himself to the pre-employment drug test and, after three days on the job, obtained a positive result for marijuana. Ross had been using marijuana for a number of years, allegedly recommended by his doctor, to treat a disabling injury he suffered while serving in the U.S. Air Force. He gave the company a copy of his doctor’s written recommendation and stated that he only used marijuana during non-working hours, and off company premises. RagingWire revoked the offer of employment and terminated Ross’ employment. Ross filed a lawsuit claiming that RagingWire violated California’s disability discrimination laws. Ross alleged his back injury was a disability under California’s anti-discrimination laws. Ross further alleged that by not allowing him to ingest marijuana the company failed to “reasonably accommodate” his disability. Ross further alleged that he was wrongfully terminated in violation of the public policy established by California’s Compassionate Use Act of 1996. The act, approved by voters as Proposition 215 in 1996, allows people to grow, smoke or obtain marijuana for medical needs with a doctor’s recommendation. Ross essentially argued that since it was legal in California for him to ingest marijuana, his former employer could not impede upon that right. In 1997 the California Supreme Court had ruled that an employer may reject a candidate for employment if it lawfully discovers that the applicant “… is using illegal drugs or engaging in excessive consumption of alcohol” (Loder v. City of Glendale, 14 Cal 4th 846 [1997]). The question that this case raised was whether the Compassionate Use Act required employers to accommodate medical marijuana use and whether the law otherwise protected the employment of medical marijuana users. RagingWire argued that it did not violate California’s anti-discrimination laws or the Compassionate Use Act of 1996. RagingWire argued both that California’s medicinal marijuana law was likely trumped by federal law that categorized marijuana as an illegal controlled substance without carved out exceptions. Additionally, RagingWire argued that even if California’s medicinal marijuana laws were valid, there was no obligation extended to employers to accommodate marijuana users. The California Supreme Court reasoned that Ross’ position “… might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug…” Marijuana, however, is illegal under federal law. The federal government does not recognize the marijuana laws approved by California and 11 other states. Thus, it is not possible to equate marijuana with a legally prescribed drug that will trigger the employer’s duty under the respective anti-discrimination laws. The California Supreme Court also confirmed its narrow view of the Compassionate Use Act as providing immunity from criminal liability. An alliance of groups who support medicinal marijuana use will most likely continue to challenge employment decisions based on medicinal marijuana use. In California, at least for now, employers can exhale in relief and refuse to hire me■ dicinal users of marijuana. Jeffrey R. Thurrell and Javier RiveraCarbone of employment law firm Fisher & Phillips LLP’s Irvine, Calif. office concentrate their practices on representing management in labor and employment law matters. For more information, call (949) 851-2424 or visit www.laborlawyers.com. Spring 2008 PIHRAScope 21 © www.istockphoto.com / Slobo Mitic http://www.istockphoto.com http://www.laborlawyers.com
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