Feb 13, 2008

Company Can Fire Employee for Using Medical Marijuana

medicalmarijuana.jpgThe California Supreme Court has found that a company can legally fire an employee for failing a drug test, even if that failure is due to the employee's use of medical marijuana as allowed by California law. The employee, Gary Ross, used marijuana to relieve the pain and spasms caused by a back injury he suffered while serving in the Air Force. He was offered a job at Ragingwire Telecommunications, Inc., then fired for failing a drug test shortly after starting work.

Ross sued for disability discrimination and wrongful termination in violation of public policy. He claimed that his back injury qualified as a disability, and that Ragingwire was legally required to accommodate his off-duty use of marijuana to treat his disability. He also argued that firing him for using medical marijuana violated the public policy inherent in California's Compassionate Use Act (CUA), which exempts those who use medical marijuana from state criminal prosecution for possessing or growing marijuana.

The California Supreme Court wasn't persuaded. The Court found that the CUA applied only to criminal prosecution, not to employment. Because marijuana use remains illegal under federal law, it isn't the equivalent of prescription drugs that might be used to treat a disability -- and employers don't have a legal duty to accommodate its use.

The dissent argued that allowing employees to be fired for using medical marijuana put those who suffer from serious illnesses to a cruel choice: treat their chronic pain or other symptoms with medical marijuana and lose their jobs, or keep their jobs and suffer. The dissent said the court should have looked at this as a straightforward disability discrimination case and evaluated whether it would have been an undue hardship for Ragingwire to make an exception to its usual drug testing policy for Ross.

In response to the Court's decision, Assemblyman Mark Leno announced that he will soon introduce a bill in the California legislature protecting employees from being fired for off-the-job use of medical marijuana.

For more information on drug testing, check out Nolo's article Drug Testing for Job Applicants.

Lisa Guerin