Thursday, January 24, 2008
Just handed down by the California Supreme Court today is an interesting case concerning the overlap between medical marijuana laws and an employer's right to fire an employee for drug use.
In Ross v. Ragingwire Telecommunications, Inc., S138130 (CA Jan. 25, 2008), the California Supreme Court held (5-2) that the California Compassionate Use Act of 1996 did not prevent an employer from not firing a new employee who failed a preemployment drug test.
Some background and highlights from the opinion:
Plaintiff, whose physician recommended he use marijuana to treat chronic pain, was fired when a preemployment drug test required of new employees revealed his marijuana use. The lower courts held plaintiff could not on that basis state a cause of action against his employer for disability-based discrimination under the California Fair Employment and Housing Act . . .
We conclude the lower courts were correct: Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions . . . .
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 (21 U.S.C. §§ 812, 844(a)), even for medical users (see Gonzales v. Raich, supra, 545 U.S. 1, 26-29; United States v. Oakland Cannabis Buyers’ Cooperative, supra, 532 U.S. 483, 491-495). Instead of attempting the impossible, as we shall explain, California’s voters
merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. 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.
Justice Kennard, writing in concurrence and dissent, and joined by Justice Moreno, writes:
In a decision conspicuously lacking in compassion, however, the majority holds that an employer may fire an employee for such marijuana use, even when it occurs during off-duty hours, does not affect the employee’s job performance, does not impair the employer’s
legitimate business interests, and provides the only effective relief for the employee’s chronic pain and muscle spasms. I disagree.
The Court's reasoning appears sound (I don't see how you get by the illegality of the drug), but I would be interested in hearing from any California readers to get a sense of whether there are differences under the FEHA from Title VII that makes this decision unsound.