Employee Who Uses Medical Marijuana May Be Fired

September 07, 2005

Kenneth Ofgang, Metropolitan News-Enterprise

Firing an employee who tests positive for marijuana does not violate the Fair Employment and Housing Act, even if the employee can show that he uses marijuana for medicinal purposes under Proposition 215, the Third District Court of Appeal ruled yesterday.

The court rejected Gary Ross’ claim that because the initiative protects his right to physician-approved marijuana use as treatment for lower back strain and muscle spasms, his employer’s refusal to accommodate his use of the drug constituted discrimination on the basis of disability and a violation of public policy.

“Because the possession and use of marijuana is illegal under federal law, a court has no legitimate authority to†require an employer to accommodate an employee’s use of marijuana, even if it is for medicinal purposes and thus legal under California law,” Presiding Justice Arthur Scotland wrote. “If FEHA is to be extended to compel such an accommodation, that is a public policy decision that must be made by the Legislature, or by the electorate via initiative, and not by the courts.”

Positive Test

Ross worked as a systems administrator at Ragingwire Telecommunications, Inc. in Sacramento, but was fired eight days after starting work as a result of his positive test for THC, the main chemical found in marijuana. The company said it would consult with Ross’ physician before making a final decision on his employment, but went ahead and fired him.

In his complaint, Ross alleged that he uses the drug, on his doctor’s recommendation, because other treatments for the injuries he suffered during military service over 20 years ago have not afforded relief. He also contended that neither his disability nor his marijuana use affect his ability to perform the essential functions of the job Ragingwire hired him to do.

On demurrer, Ragingwire argued that because marijuana is a controlled substance that Ross cannot use under federal law, and because nothing in Proposition 215 requires employers to retain employees who use the drug, there was no violation of FEHA or public policy.

Sacramento Superior Court Judge Joe S. Gray agreed and dismissed the suit.

Scotland, writing for the Court of Appeal, said Gray was correct.

Proposition 215, the presiding justice explained, “simply permits a person to use marijuana for medicinal purposes in our state without incurring state criminal law sanctions” and “says nothing about protecting the employment rights of those who do so.”

The jurist cited the recent ruling of the U.S. Supreme Court that the federal government may enforce its anti-marijuana laws against California residents without regard to Proposition 215.

“Plaintiff claims we cannot resort to federal law to resolve his claim under FEHA, but he refers us to no legal authority supporting the proposition that he is exempt from federal criminal statutes merely because he lives in California,” Scotland explained.

As long as marijuana possession remains a federal crime, the jurist went on to say, requiring an employer to tolerate marijuana use as a disability accommodation would create numerous problems that the voters could not have intended to create by passing the initiative.

Scotland’s Reasoning

For example, Scotland reasoned, if other employees who use prescribed medication in order to perform their jobs take those drugs at work, medical marijuana users might be entitled to insist on the same accommodation. This, in turn, would subject the employer to negative consequences, including federal raids and the loss of state contracts under the Drug-Free Workplace Act.

An additional complication, the presiding justice wrote, is that Proposition 215 requires no more than an oral recommendation by a physician in order for an employee’s marijuana use to be shielded from state criminal prosecution.

Since the employer would have little means of determining the legitimacy of the employee’s claim that his or her use of the drug is Proposition 215-protected, “the employer could be put to the Hobson’s choice of either hiring an employee who may be using drugs illegally and is a substance abuser, or refusing to hire the employee and risking the expense of a lawsuit alleging discrimination.”

The case is Ross v. Ragingwire Telecommunications, Inc., 05 S.O.S. 4364.



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