The California Supreme Court in Ross v. Ragingwire Telecommunications, Inc. has held that an employee fired for his use of medicinal marijuana cannot sue his former employer for disability discrimination or wrongful termination under California law. The court ruled that The Compassionate Use Act of 1996 - the law permitting medicinal marijuana use - does not address the respective rights and duties of employers and employees; the Act merely shields medicinal marijuana users from criminal liability under state law.
Ross Decision
At issue was whether plaintiff Gary Ross could sue his former employer, Ragingwire, for discrimination and wrongful termination. Ross had been using prescribed medicinal marijuana. He was fired due to a marijuana-positive drug test. Ross alleged Ragingwire violated the Fair Employment and Housing Act's (FEHA) disability discrimination prohibition by discharging him because of, and failing to make a reasonable accommodation for, his disability and preferred treatment method. He also alleged Ragingwire wrongfully terminated him in violation of public policy. Medicinal marijuana use is permissible under California law and illegal under federal law.
Ross suffers from back spasms as a result of injuries incurred while serving in the U.S. Air Force. In 1999, he began using medicinal marijuana based on his physician's recommendation. In 2001, Ragingwire offered Ross a job and required him to take a drug test. Before taking the test, Ross notified the testing facility of his medicinal marijuana prescription. After testing positive for marijuana, he presented his medicinal marijuana prescription to Ragingwire explaining that he used marijuana to relieve chronic back pain. Ragingwire then fired Ross because of his marijuana use. Ross alleged his chronic back pain and medicinal marijuana use did not affect his job performance. He pointed out that he had worked in the same industry since 1999 and never received complaints about his performance. Further, he disclaimed any intention to use or possess marijuana at work.
After reviewing the Act's text and legislative history, the Supreme Court ruled that the Act merely exempts individuals from state criminal liability for medicinal marijuana use; it does not address their rights as employees. Plaintiff argued that allowing employers to refuse accommodation of medicinal marijuana use eviscerated rights promised to medicinal users, but the court disagreed, noting that California's Legislature could have addressed medicinal marijuana in the employment context but did not. Further, the court cited its previous decisions that implicitly recognize that FEHA does not require employers to accommodate the use of illegal drugs.
The court used the same rationale in ruling plaintiff could not sue Ragingwire for wrongful termination in violation of public policy. By a 5-2 vote, the court ruled the Act did not address employment issues and, therefore, did not put defendant on notice that employers would be required to accommodate medicinal marijuana use. Plaintiff alleged that his termination violated his right to "determine whether or not to submit to lawful medical treatment" under the California Constitution. The court rejected this argument because Ragingwire only refused to employ Ross, it did nothing to affect his access to medicinal marijuana.
Practical Effect
While employers now have discretion regarding treatment of positive marijuana test results for medicinal users, they must be wary of knowingly hiring or retaining employees who use medicinal marijuana. An employer who knows of an employee's medicinal marijuana use puts its federal contracts at risk because marijuana possession is illegal under federal law. Further, employers potentially expose themselves to third-party liability and liability to other employees for the on-the-job acts of medicinal marijuana-using workers.
To avoid discrimination claims, employers should adhere to a consistent policy in responding to positive drug tests for employees or applicants using medicinal marijuana. If an employer allows an employee using medical marijuana to continue working, that employee should be held to the same performance standards as his co-workers. And since retaining or hiring some employees who test positive for medical marijuana use while terminating or refusing to hire others may give rise to a discrimination claim, employers should ensure their employment decisions are based on legitimate, non-discriminatory grounds.
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