California Employee Terminated For Medical Marijuana

The Federal Government considers marijuana a Schedule 1 drug (a narcotic), under the Federal Controlled Substance Act (21 U.S.C. § 801-971).  However, California is now among 23 states that have legalized marijuana for medical use (California Health & Safety Code §  11362.5, the Compassionate Use Act).  One of the more visible areas of conflict this discrepancy creates is in employment law.  How must a California employer respond to an employee using medical marijuana?  Where can a California employment attorney be of use?

The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) both require that no employer discriminate against mental or physical disabilities which cause symptoms that greatly impair “major life activities.”  While the ADA defines a disability as “substantially limiting” the disabled person’s activity, California has a broader definition under FEHA, where a person’s activities must only be “difficult.”  Challenges under both of these laws have been brought, though both the California Supreme Court, and the 9th Circuit Court of Appeals have upheld the termination of employees who used marijuana legally under California law.

In Ross v. Raging Wire Telecommunications, 42 Cal. 4th 920 (2008), an employee failed a drug test administered by the employer, and was subsequently terminated.  The employee sued for wrongful termination, discrimination, and breach of contract, claiming that his prescription to use marijuana for chronic back pain under the Compassionate Use Act should prevent his employer from discriminating against his marijuana use, even at his home.  The termination was upheld, and the California Supreme Court ruled that “plaintiff cannot state a cause of action under the FEHA based on defendant’s refusal to accommodate his use of marijuana.”  Id. at p. 931.

The court reasoned that the Compassionate Use Act “does not eliminate marijuana’s potential for abuse or the employer’s legitimate interest in whether an employee uses the drug.”  Id. at p. 927.  The court reiterated that marijuana is illegal under federal law, and concluded that while the Compassionate Use Act decriminalizes the use of medical marijuana, it does not “require employers to accommodate marijuana use.”  Id.

In James v. City of Costa Mesa, 700 F. 3d 394, 700 F.3d 394 (9th Cir. 2012), the Ninth Circuit Court of Appeals ruled that protection from discrimination under the Americans with Disabilities Act was not available to a medical marijuana user.  While the court noted that California has made the use of medical marijuana permissible, it concluded that marijuana’s illegality under federal law results in the ADA offering no protection.

Litigation on the subject continues, because while employers are not currently required to accommodate the use of medical marijuana, they must still follow state law regarding the drug testing of their employees.  When a drug test is contested, courts will balance the employer’s reason for testing against the employee’s legitimate expectation of privacy.

Employees may be tested during pre-employment screening, as part of a physical examination, if they are under reasonable suspicion, or during post-accident testing.  Randomly testing employees in an industry that does not fall into one of only a few specific categories can lead to wrongful termination.  This is especially true if a company does not have a history and/or a policy of a drug-free workplace, or if a certain group of employees is singled out by race, age, or gender for testing.  Further, even if an employer has a legitimate reason to test, the employer may violate the employee’s privacy in the manner in which it conducts the test.  Finally, should an employer publicize that an employee has tested positive, even as the result of a legitimate test, that employee may have a valid claim for defamation of character.

At Stephen Danz & Associates, we have experience bringing successful wrongful termination, whistleblower, and discrimination lawsuits as California employment attorneys, and we would be happy to talk to you about your employment situation if you have any questions.  Contact us today for a free consultation.