Medical Marijuana Use as Grounds for Discharge (1/28/08)

Medical Marijuana Use as Grounds for Discharge

By Michael C. Saqui and Anthony P. Raimondo

On January 24, 2008, the California Supreme Court decided that an employer can discharge an employee who tests positive for marijuana, even if the employee is using marijuana for medical purposes that are lawful under California law. In the case, Ross v. RagingWire Telecommunications Inc., the court ruled that the employer did not discriminate against a disabled employee under California’s Fair Employment and Housing Act (FEHA) by terminating him for using medical marijuana.

With the passage of Proposition 215 in 1996, California became the first of a number of states to legalize the use of marijuana for medical use. Enforcement throughout the state was inconsistent, and further protections were put into place through Senate Bill 420, which was signed into law by Governor Gray Davis in 2003. However, marijuana use remains illegal under federal law, and the U.S. Supreme Court has ruled that California’s medical marijuana law does not limit the federal government’s ability to enforce federal drug laws in California. Thus, even in California where medical marijuana is legal under state law, violators of the federal laws can be arrested and tried in the federal system.

Despite state law authorizing medical marijuana, the California Supreme Court recognized that marijuana use is not the sort of “reasonable accommodation” which state disability-discrimination laws require employers to grant to disabled employees: “Because the possession and use of marijuana is illegal under federal law,” wrote Chief Justice Scotland, “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.” Although California allows the use of medical marijuana, the laws do not create a right which can be used against third parties, such as employers. The court also reiterated its established position that an employer has a legitimate interest in reducing problems associated with drug use, such as attendance and workplace safety.

Counsel to Management:

The ruling affirms that an employer does not have to allow an employee to use a drug prohibited by federal law, even if state law allows its use for medical purposes. Accordingly, employers with established drug-free workplace policies can enforce those policies notwithstanding the passage of Proposition 215.

Every employer must have in place a drug and alcohol policy, not only to address problems with absenteeism, productivity, turnover, and health costs, but also to ensure safety in the workplace and minimize liability to third parties. Where drugs or alcohol do interfere with the work environment, immediate action must be taken, and might range from suspension and referral to a diversion program, to immediate termination. The scope of a drug and alcohol policy, and testing under such a policy, will depend upon the nature of the workplace and the employer’s needs.

Drug-testing policies may not be implemented in ways which violate the Americans with Disabilities Act or privacy laws. Prior to making an offer, an employer may not conduct inquiries or testing into an applicant’s medical conditions or medical history. Once an offer is made, an employer may require drug testing, and the offer may be conditioned on passing the test. If drug tests are administered, they should be required of all applicants, to avoid applying them on a discriminatory basis. After hire, further testing may be permissible: reasonable suspicion testing of employees may be required of employees whose actions or erratic performance indicates that the he or she has been under the influence of drugs or alcohol; reasonable-suspicion testing may not only be permissible, but is imperative where the employee poses a risk to workplace safety. Post-accident testing is generally accepted as a variation on reasonable-suspicion testing, but may only be conducted following accidents of sufficient severity. In California, which has among the most restrictive privacy laws, random testing should only be applied to those who work in safety- or security-sensitive positions, and only if employees are given sufficient notice of the policy and how it is implemented. Whether a position is safety/security-sensitive depends on numerous factors; these and other determinations, such as what sorts of accidents are sufficiently severe as to trigger post-accident testing, should be made after conferring with experienced counsel.

Not only must drug policies be carefully crafted, but, as with any policy, they must be applied consistently and across the board, to avoid even the appearance of engaging in discriminatory practices. Each employer should seek the assistance of counsel in developing a policy that works for its particular circumstances.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Saqui & Raimondo at (831) 443-7100 in Salinas, or (916) 782-8555 in Sacramento.