Thursday, January 24, 2008

CA Supreme Ct: Medical Marijuana Firing OK

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.

California 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.


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i'm not sure that the problem with the case is FEHA vs. Title VII (or the ADA) focused; i think there was a failure of the majority to clearly address the case as a disability discrimination claim and instead consider themselves five thumbs stuck in the crumbling dike of the drug war...

basically, the "illegality of the drug" is non-responsive to the question of the employer's duty to accommodate (i.e., in this case, whether the employer should waive/ignor a "positive for pot" result on a drug test and employ a qualified systems administrator who has successfully performed the functions of the job).

the case was not about whether the Compassionate Use Act forbade employment discrimination; it's whether the "duty to accommodate" under FEHA was met.

indeed, requiring an employer to do an illegal act is an "undue hardship." but, the employer was neither being asked to do nor allow an illegal activity, nor would the proposed accommodation violate its control of the workplace. any illegality was off-duty and away from work. (and, by the way, the fed prosecutor has conceded the feds won't prosecute individual California patients using medical marijuana.)

so, was it a "reasonable accommodation" to ignor a positive-for-pot drug test to employ a qualified employee who uses prescription pot at home to ease pain from a military injury, or was it an "undue hardship" because it would require the company to make an exception to its blanket policy to fire for a positive drug test?

there wasn't any showing of an individualized assessment (usually required in disability discrimination cases) or discussion of business necessity (although the majority did cite hype about the drug's "high potential for abuse" and "lack of any currently accepted medical use" [which is strange for California's high court to write, because California law specifically permits medical marijuana use]).

so, there's no dispute it's illegal (it's illegal! it's illegal!!!!). that doesn't answer questions relevant to Ross' disability discrimination claims, including was there a disability? was there a conflict with a work duty? was there a reasonable accommodation? and most significantly, was it an undue hardship to waive/ignor this drug test result?

Posted by: kent | Jan 25, 2008 12:37:04 PM


Couldn't agree more. I believe the dissent got it right and the majority erred in failing to even follow their own precedent. The case reached the CA Supreme Court on demurrer, so the only question was "Does this place an undue hardship on the employer?"

As explained in my own blog post yesterday on the subject, there is no way the Court could have followed the required analysis and reach the same decision.

Posted by: James Peters | Jan 25, 2008 4:59:16 PM

I agree. Companies shouldn't have the right to examine our urine. What gives them this right? I'm sure it wasn't in the constituition. I don't think its right and people should be able to protect themselves. people deserve their privacy. If your about to take a pre employment drug test read this article

Posted by: tk | Jun 15, 2008 11:42:36 AM

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