In Ross v. RagingWire Telecommunications, Inc., (— Cal.Rptr.3d —, 2008 WL 191216, Cal., Jan. 24, 2008), the California Supreme Court considered whether an employee whose physician recommended he use medical marijuana for chronic pain stated a cause of action for disability-based discrimination under California’s Fair Employment and Housing Act (“FEHA”) or wrongful termination in violation of public policy against an employer who terminated him after a drug test revealed his marijuana use.
The Supreme Court found that the employee did not state a cause of action for discrimination or wrongful termination because the Compassionate Use Act does not speak to employment law and does not require an employer to accommodate an employee’s use of medical marijuana at home.
Facts
Gary Ross (“Ross”) suffers from back problems arising from injuries he sustained in the United States Air Force. Due to his condition, Ross is considered under the FEHA as a qualified individual with a disability and he also receives disability benefits from the government. Ross began to use marijuana in September 1999 to help obtain relief from his back pain because he was unable to obtain relief through other medications. Ross’s physician recommended he use medical marijuana pursuant to the Compassionate Use Act.
On September 10, 2001, RagingWire Telecommunications, Inc. (“RagingWire”), offered Ross a job. RagingWire required Ross to take a preemployment drug test. Ross gave the clinic that administered the test a copy of his physician’s recommendation for medical marijuana. Ross took the drug test on September 14 and began work at RagingWire on September 17. The clinic notified Ross after he started work that he tested positive for a chemical found in marijuana. On September 20, 2001, RagingWire notified Ross that he was being suspended because of the results of the drug test. Ross gave RagingWire a copy of his physician’s recommendation for medicinal marijuana use. Nonetheless, RagingWire terminated Ross’s employment because of his marijuana use.
Ross brought a lawsuit alleging that RagingWire’s action in terminating him for his use of medical marijuana violated the FEHA and constituted a wrongful discharge in violation of public policy. Both the trial court and the Court of Appeal found in favor of RagingWire.
Supreme Court Decision
The California Supreme Court affirmed the decisions of the lower courts. The Court found that the Compassionate Use Act does not speak to employment law and does not require an employer to accommodate an employee’s use of medical marijuana at home.
The FEHA makes it unlawful for an employer to discriminate against an employee or potential employee because of a physical disability or medical condition. However, “[a]n employer may discharge or refuse to hire a person who, because of a disability or medical condition, ‘is unable to perform his or her essential duties even with reasonable accommodations.'” Ross alleged that RagingWire violated the FEHA by denying him employment and failing to make reasonable accommodations.
The Court found that, in essence, Ross was asking RagingWire to accommodate his use of medical marijuana at home by waiving its policy that a new employee must have a negative drug test. Ross asserted that the FEHA works together with the Compassionate Use Act to provide him a remedy for RagingWire’s decision not to employee him. In fact, Ross claimed that his use of medical marijuana is the same as an employee who must use insulin or a prescription drug.
Marijuana use remains illegal under federal law and the Compassionate Use Act merely exempts medical users and their primary caregivers from criminal liability under two specific state statutes. There is nothing in the Act that indicates voters intended when passing the measure to address employment rights and obligations. Also, 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.” Neither the operative provisions of the Compassionate Use Act nor the findings and conclusions that precede them mention employment law. There is nothing in the Act to support Ross’s position.
Furthermore, the FEHA does not require employers within California to accommodate the use of illegal drugs. The Court found no other laws enacted after the Compassionate Use Act that require an employer to accommodate an employee’s use of medical marijuana at home. Because neither the Compassionate Use Act nor the FEHA requires RagingWire to accommodate Ross’s use of medical marijuana, the Court found that Ross failed to state a cause of action against RagingWire for disability discrimination under the FEHA.
The Court also held that Ross failed to state a cause of action for termination in violation of public policy. There is nothing in the Compassionate Use Act or its history which “indicates the voters intended to articulate any policy concerning marijuana in the employment context, let alone a fundamental public policy requiring employers to accommodate marijuana use by employees.” Also, the Act did not put RagingWire on notice that employers would be required under the FEHA to accommodate employees’ use of medical marijuana. Therefore, Ross alleged no fundamental public policy violated by RagingWire when it fired him for using marijuana.