No Job Protection for Medical Marijuana Users

The California Supreme Court issued its decision in Ross v. RagingWire this morning holding that while medical marijuana use may be lawful under state law, that law does not prohibit employers from terminating employees based on that use: 

We conclude that 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.  We thus affirm.

Ross was fired from his position as a systems administrator after his preemployment drug test revealed the presence of THC (the chemical in marijuana).  Ross had given the drug testing company his doctor’s certification that the marijuana was used to treat chronic back pain, and he had supplied the employer with the same information.  Nonetheless, the company terminated his employment based on their policy prohibiting illegal drug use.

Ross sued, arguing that the termination violated the employer’s duty of reasonable accomodation for his disability under the state Fair Employment and Housing Act and further that the termination was a violation of public policy.

The majority noted that although California voters had the power to change California law regarding possession and use of marijuana, they had no power to change federal law.  Thus, the drug remains illegal under federal law.  The question, then, was whether the employer was required to waive its policy against the use of illegal drugs in order to accommodate Ross’ disability.

The court rejected that argument.  The majority noted that the Compassionate Use Act did not purport to speak to the duties of employers, nor did it “eliminate marijuana’s potential for abuse or an employer’s legitimate interest in whether an employee uses the drug.” 

Of note, the majority quoted from the United States Supreme Court decision in Gonzales v. Raich, 545 U.S. 1 (2005), noting the federal policy of criminalizing the use of marijuana based on its “high potential for abuse” and the lack of “accepted medical use.”  The state law obviously stands in opposition to this federal policy.  The majority noted, however, that while voters are free to disagree with Congress on this issue, the fact that they did so does not compel the conclusion that they also intended to require employers to accommodate use of a drug that is illegal under federal law.

The court also rejected the argument that the dismissal here constitutes “wrongful termination in violation of public policy” (an exception to California’s general rule of employment at will).  Again, the court declined to find a public policy related to employment in the Compassionate Use Act.

The dissent argued that the majority “disrespects the will of California’s voters” in failing to protect an employee’s off-duty use of marijuana pursuant to a doctor’s recommendation.  The dissent would find a violation of the California Fair Employment and Housing Act unless the employer could demonstrate that the off-duty use would impair the employer’s operations.  The dissent would not, however, find a wrongful discharge in violation of public policy.  The fact that marijuana use remains illegal under federal law is sufficient to take it outside of the public policy that would support such a tort cause of action.

The interesting aspect of this case is the apparent fine line the court walked when interpreting an initiative measure that conflicted with federal law.  The initiative had the power to affect state law, but that left a contrary federal law in place.  The problem that the court had to deal with here was how all of that affected other state laws.  Did the fact that voters permitted the use of marijuana for “medical purposes” have an impact on state laws requiring reasonable accommodation for medical conditions?  Further, does an employer have the right to create company policy based on federal law – even when there is a conflict between federal and state law?

The majority dealt with these questions by a close reading of the initiative.  The court was not willing to infer a voter intent in this area beyond the terms of the initiative, especially where there was no explicit evidence that voters intended the measure to alter employment law.

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