Question:

One of the employees in our processing department was injured after a heavy box landed on his foot. In compliance with our company’s policy, the employee was required to submit to alcohol and drug testing. The employee tested positive for marijuana. However, he produced a doctor’s prescription for medical marijuana stating that he uses marijuana to alleviate pain associated with arthritis. Can we legally terminate this employee for violating our policy prohibiting the use of illegal drugs?

Answer:

In short, you can terminate the employee for violating your Drug Free Workplace Policy. On January 24, 2008, the Supreme Court of California decided Ross v. Ragingwire Telecommunications, Inc. In its decision, the Court ruled that employers may lawfully terminate employees who test positive for marijuana. Notably, there is no exception for an employee with a doctor’s prescription for medical marijuana.

In the Ross case, the plaintiff, Gary Ross, was offered a job at Ragingwire as a Lead Systems Administrator. Mr. Ross accepted the job, and was subjected to a pre-employment drug test. Because Mr. Ross suffers from strain and muscle spasms in his back as a result of injuries he sustained while serving in the U.S. Air Force, his physician recommended that he use marijuana to treat the associated chronic pain. Mr. Ross gave the person who administered the drug test a copy of his medical marijuana prescription, believing that the prescription would shield him from adverse employment action.

However, after the preemployment drug test revealed his marijuana use, Mr. Ross was fired. Mr. Ross filed a lawsuit, alleging that Ragingwire violated the Fair Employment and Housing Act (FEHA) by failing to reasonably accommodate his disability, as well as wrongful termination in violation of public policy. The lower courts held that Mr. Ross did not state a viable claim because marijuana is illegal under federal law, and the California Supreme Court affirmed this decision. In its opinion, the Supreme Court explained that the language and history of the California Compassionate Use Act of 1996 did not address the rights and duties of employers.

That Act, codified in Health and Safety Code § 11362.5, gives individuals with medical marijuana prescriptions a defense to certain state criminal charges relating to the possession and cultivation of marijuana. However, the court stated that employers do not need to accommodate off-duty medical marijuana usage by employees. The court reasoned that marijuana does not have the same status as legal prescription drugs because marijuana remains illegal under federal law, and therefore, employers do not have a duty to make a reasonable accommodation for medical marijuana use. Furthermore, the court held that employers may terminate an employee who fails a pre-employment drug-screening test for marijuana.

Two Supreme Court justices disagreed with the majority’s decision and wrote a dissent, arguing that that the majority’s decision forces patients into choosing between medical treatment and gainful employment. Moreover, the dissent explained that Mr. Ross stated a valid claim for disability discrimination under FEHA, and that Ragingwire should be required to show that accommodating his medical marijuana use would adversely affect its business operations in a substantial manner.

In response to Ross, in 2008 the California Legislature passed Assembly Bill 2279, which sought to protect employees who use medical marijuana prescribed by a physician from discharge. The bill was intended to overturn the Court’s ruling in Ross v. Ragingwire. The bill included an exception for safety sensitive positions in which medical marijuana-affected performance could endanger the health and safety of others. However, Governor Schwarzenegger vetoed the bill, explaining that employment protection was not a goal of the Compassionate Use Act as passed by the voters. Therefore, the majority’s decision in Ross represents the controlling law regarding the intersection of medical marijuana and employment law. As a result, an employer can terminate an employee for violating company policy prohibiting illegal drug usage even if the employee has a medical marijuana prescription.
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