California Employers Free to Say “NO” to Medicinal Marijuana

The controversial Compassionate Use Act of 1996 gave people who use marijuana for medical purposes a defense to certain crimes. However, a recent California Supreme Court case, Ross v. Raging Wire Telecommunications, Inc., held that employers do not have to tolerate an employee’s use of medical marijuana.

In the Ross case, Raging Wire required Mr. Ross - who suffered from back spasms - to take a drug test, in which he tested positive for marijuana use. Raging Wire then fired Mr. Ross, prompting him to file a lawsuit claiming that the company wrongfully terminated him and discriminated against him because of his disability.

Mr. Ross argued that the Compassionate Use Act required the employer to accommodate his disability and thus allow him to use marijuana to ease his back pain. He argued that if it would violate California’s discrimination laws to fire someone who used insulin, it also violated discrimination law to fire an employee who uses other medicine deemed legal by California, in this case medicinal marijuana. The court rejected this argument, finding that the Compassionate Use Act did not actually legalize marijuana, but merely provided a defense to criminal charges in limited circumstances. The court held that the Compassionate Use Act did not give marijuana the same status as any legal prescription drug, and that no state law could completely legalize marijuana for medical purposes because the drug is illegal under federal law.

Finally, the court refused to extend the protection of the Compassionate Use Act into the employment realm, reasoning that marijuana has a potential for abuse and that employers have an interest in whether an employee uses the drug.

The case also reaffirmed that California law allows employers to require pre-employment drug tests, and that employers are free to take drug use into account in making employment decisions. However, it must be noted that certain types of employee drug testing create legal risks, so employers interested in performing drug tests should first consult with an employment law attorney.