The California Court of Appeal recently addressed the issue of whether an employer’s discharge of an employee for using marijuana for medicinal purposes in accordance with the Compassionate Use Act violated the Fair Employment and Housing Act (FEHA) or public policy. The Court concluded that permitting an employer to fire or refuse to hire a person who used marijuana for medicinal purposes does not violate the California state policy created by the Compassionate Use Act. (Ross v. Ragingwire Telecommunications, Inc., (2005 Daily Journal D.A.R. 10,987, Cal.App. 3 Dist., Sept. 7, 2005))
Facts
Gary Ross (Employee) is a qualified individual with a disability as defined by the FEHA because he suffers from back problems arising from injuries he sustained in the armed services. His physician gave him a recommendation to use marijuana after he failed to obtain relief from traditional medications. Ragingwire Telecommunications, Inc. (Employer) required Employee to take a preemployment drug test prior to taking a position with the company. However, Employer allowed Employee to begin work before the results of the drug test were revealed. After the test results revealed that Employee tested positive for the main chemical found in marijuana, Employee gave Employer a copy of his physician’s recommendation for medicinal marijuana use. However, Employer terminated Employee’s employment because of his marijuana use.
Employee brought a lawsuit alleging that Employer’s action in firing him for using marijuana as medicine for his disability violated the FEHA and constituted a wrongful discharge in violation of public policy. The trial court found that Employer was justified in terminating Employee because his marijuana use violated federal criminal statutes even if Employee’s use of marijuana did not violate state criminal laws.
Appellate Court Decision
The FEHA prohibits an employer from discriminating against an employee based on his or her physical condition or disability. However, the FEHA does not prohibit an employer from making use of employer-mandated drug testing and an employer may lawfully refuse to employ a person who fails a drug test that was taken as a precondition of employment. An employer does not have to accommodate a disability by allowing an employee to use illegal drugs. Thus, if Employee’s drug use is illegal, Employer was justified in revoking its job offer and terminating his employment.
The Compassionate Use Act grants patients who use marijuana for medicinal purposes a limited immunity from criminal prosecution under California law. However, the use of marijuana is illegal under the federal Controlled Substances Act. The Court opined that, “[s]imply because state law does not prohibit [Employee’s] conduct does not mean that federal law may not do so.” The Court rejected Employee’s contention that only California marijuana laws should apply to his FEHA claim and concluded that Employee’s contention raises significant issues of public policy that should be decided by the legislature or the electorate, rather than by the courts. Until the legislature or the electorate amends the FEHA to compel employers to accommodate employees’ use of medicinal marijuana, an employer does not violate FEHA by firing or refusing to hire a person whose preemployment drug test reveals that he or she illegally used marijuana under federal law, even if the marijuana is used in accordance with the Compassionate Use Act. The Court further found that an employer’s firing or refusing to hire a person using medicinal marijuana does not violate any fundamental public policy that is set forth in the Compassionate Use Act.