The California Supreme Court recently rejected a lawsuit brought by an employee who was terminated shortly after his employer learned that he had tested positive for marijuana. According to the court, employers have the right to conduct preemployment drug tests and to fire, or refuse to hire, individuals who test positive for illegal drugs – even if they are used for medicinal purposes. Ross v. RagingWire Telecommunications, Inc., No. S138130, California Supreme Court (January 24, 2008).

Factual Background

Gary Ross has suffered from chronic back pain since January 1983, as a result of injuries that he sustained during military service. Traditional pain medications provided no relief, so his physician recommended that he use marijuana in accordance with California’s Compassionate Use Act of 1996. Under the Act, doctor-recommended marijuana use as a medical treatment is “not subject to criminal prosecution or sanction.”

On September 10, 2001, Ross was offered a position as a lead systems administrator with RagingWire Telecommunications, Inc. (RTI). Four days later, he took a company-mandated preemployment drug test. Before taking the test, Ross provided the clinic a copy of his physician’s recommendation that he use marijuana. On September 17, he began working for RTI.  He was terminated approximately one week later, however, because he had tested positive for marijuana.

Legal Background

Ross sued his former employer under the Fair Employment and Housing Act (FEHA) alleging disability discrimination (among other claims). The trial judge ruled in favor of RTI and Ross appealed this decision to the California Court of Appeal.

In upholding the trial judge’s decision, the Court of Appeal wrote: “Nothing in [the] FEHA precludes an employer from firing . . . a person who uses an illegal drug. Because the possession and use of marijuana is illegal under federal law, 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.” The court further noted that the responsibility of expanding the FEHA to compel such an accommodation lies with the Legislature or the electorate (via initiative) and not the courts.

Legal Analysis

The case was recently decided by the California Supreme Court, which agreed with the lower courts. According to the justices, the Compassionate Use Act does not give marijuana the same status as legal prescription drugs. “No state law could completely legalize marijuana for medical purpose,” the court held, “because the drug remains illegal under federal law . . . even for medical users.” Moreover, the court found that neither the plain language nor history of the Act suggests that the voters intended the measure to address the respective rights and obligations of employers and employees. 

Since the FEHA does not require employers to accommodate the use of illegal drugs, the court concluded, Ross cannot state a cause of action based on his employer’s refusal to accommodate his use of marijuana. In affirming the lower courts’ decision to dismiss Ross’ suit, the court wrote: “[u]nder California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions.”
Practical Impact

According to David Fishman, an attorney in Ogletree Deakins’ Los Angeles office: “While the Supreme Court’s decision in RagingWire is a victory for employers that conduct, or plan to conduct, pre-employment drug tests, employers should be mindful of several important practical implications of the decision.”

First, Fishman notes, the opinion only addresses a single narrow issue: an employer is not required to disregard a positive preemployment drug test as a reasonable accommodation for a job applicant’s disability. However, with regard to use of marijuana for medicinal purposes by a current employee, it is likely necessary for an employer to engage in the interactive process to determine whether there is an alternative reasonable accommodation for the employee’s disability.

Second, the decision only applies in California. This is an important consideration for employers that operate outside of California. There are more than 10 other states that have laws similar to California’s Compassionate Use Act, and it is possible another state would reach a different result under its laws.

Third, employers should carefully review their policies with legal counsel to ensure that they are carefully drafted to prohibit all illegal drug use and not just drug use that occurs on work time or while at work.

Finally, Fishman continued, as both the Court of Appeals and the Supreme Court invited, employers should be cognizant that the state legislature may enact legislation clarifying the interplay between the Compassionate Use Act and the Fair Employment and Housing Act. In fact, supporters of legislation to overturn the decision have already mobilized and latched on to Justice Joyce L. Kennard’s dissenting opinion, which stated that the majority’s ruling “has seriously compromised the Compassionate Use Act, denying to those who must work for a living its promised benefits.”

Note: This article was published in the January 31, 2008 issue of the California eAuthority.

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