"The debate over medical marijuana has culminated in a California Supreme Court case decided on January 24, 2008."
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DISABILITY LAW UPDATE
Cal Supreme Court Decides to "Weed" Out Medical Marijuana
By Christopher W. Olmsted, Esq.
California voters legalized the use of medical marijuana in 1996. Does that mean employers must hire pot smokers who claim that they are protected by disability discrimination laws?
The debate over medical marijuana has culminated in a California Supreme Court case decided on January 24, 2008. The case, titled Ross v. Ragingwire, involves a job applicant fired after a drug test came back positive for marijuana. The issue centers on whether California employers may rely on federal drug laws to avoid state law discrimination claims by employees using medicinal marijuana.
At the time of the drug test, the computer tech submitted a note from his doctor recommending that he smoke pot to alleviate back pain. The employer terminated Mr. Ross because federal law makes marijuana illegal. Although California voters legalized medicinal marijuana in 1996, federal law contains no allowance for medicinal use. Mr. Ross sued the small telecommunications company, alleging that it failed to accommodate his medical disability in violation of the Fair Employment and Housing Act ("FEHA").
The California Supreme Court flatly rejected the employee's claim that the Compassionate Use Act requires employers to accommodate marijuana use. "Plaintiff's position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law."
After carefully reviewing California's medical marijuana law, the court concluded: "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."
California's highest court also confirmed that California's anti-discrimination law, the Fair Employment and Housing Act (FEHA), does not require employers to accommodate illegal drug use. In so doing, the court expressly reaffirmed an employer's right to require job applicants to submit to testing for illegal drugs.
The court noted that its ruling does not prevent individuals from using marijuana for medical purposes. Rather, such individuals simply cannot force employers to hire them. Of course, not all employers require employees to submit to drug tests.
In light of the court's ruling, employers have the green light to screen out marijuana users and other illegal drug users. Employers should evaluate whether or not to implement drug testing and drug abuse policies. However, seek legal advice before doing so. The Court's ruling did not change any of the existing limitations on testing found in state and federal disability and privacy laws. Testing policies must be carefully applied in an evenhanded manner. Further, important privacy rights remain relevant to such policies. These issues are particularly delicate in the area of drug testing programs for current employees (as compared to policies regarding job applicants).
Stay tuned. A few California legislators are already promising to amend the Compassionate Use Act to protect job applicants and employees.
For help with your drug testing and drug abuse policy, please contact Chris Olmsted.
More Legal Update articles.
Download entire February Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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