Question: What do I do if my employee comes to work under the influence of marijuana?  What if the employee has a prescription? Can I discharge the employee or do I have to allow the employee to come to work under the influence?
Answer: This situation presents a dilemma for some employers.  Marijuana is an illegal drug under federal law.  Employers have legitimate concerns regarding employing individuals who are using marijuana and coming to work under the influence.  These workers may present safety and productivity issues, among other concerns.
California’s Compassionate Use Act permits individuals to use prescribed marijuana where that medical use is deemed appropriate and has been recommended by a physician for treatment of specific illnesses.  Most individuals who use medical marijuana do so because they suffer from some condition that would qualify them as a disabled individual under the Americans with Disabilities Act (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”), which prohibit employment discrimination against disabled individuals.
However, the ADA does not apply where a person claims discrimination on the basis of medical marijuana use.  The ADA states that the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs.  Therefore, even if an applicant or employee has a prescription for using marijuana, the protections of the ADA do not apply.  A Ninth Circuit Court of Appeals case held “doctor-recommended marijuana use permitted by a state law, but prohibited by federal law, is an illegal use of drugs for the purposes of the ADA, and that the plaintiff’s federally proscribed medical marijuana use therefore brings them within the ADA’s illegal drug exclusion.”  The Ninth Circuit also held that the interpretation of the term “illegal use of drugs” under the ADA includes the use of marijuana taken under doctor supervision, and that medical marijuana does not receive special protection under the ADA. The Ninth Circuit concluded its opinion by stating:  “A contrary interpretation …would allow a doctor to recommend the use of any controlled substance—including cocaine or heroin—and thereby enable the drug user to avoid the ADA’s illegal drug exclusion. Congress could not have intended to create such a capacious loophole, especially through such an ambiguous provision.”
The California Supreme Court has also held that employers are not required to accept or accommodate an employee’s use of medical marijuana.  In Ross v. RagingWire Technologies, an employee was discharged from his job after testing positive for marijuana, which the employee used under a doctor’s care to control chronic back pain.  The California Supreme Court upheld the employee’s discharge, explaining that the operative provisions of the Compassionate Use Act do “not eliminate marijuana’s potential for abuse or the employer’s legitimate interest in whether an employee uses the drug.  Marijuana…remains illegal under federal law because of its high potential for abuse, its lack of any currently accepted medical use in treatment in the United States, and its lack of accepted safety for use … under medical supervision.”
While there may be disagreement over whether medical marijuana should be permitted in the workplace, under current law medical marijuana users are not protected by the ADA or the FEHA, and employers do not have to accommodate or accept medical marijuana use in the workplace.