MEDICAL MARIJUANA CASE GOES UP IN SMOKE

Here is some good news for California employers.  On January 24, 2008 the California Supreme Court handed down its long awaited medical marijuana ruling.  The case of Ross v. Raging Wire Telecommunications, Inc., pitted the rights of employers seeking to maintain a drug free workplace against medical pot smokers' rights to employment.  The Supreme Court ruled that employers do not have to tolerate an employee's use of medically prescribed marijuana.

Gary Ross applied for a job with Raging Wire Communications.  Though he was initially offered a job and started working for Raging Wire Communications, Ross was terminated after he tested positive for marijuana during a pre-employment drug test.  Ross explained that he used marijuana for medical purposes to relieve his chronic back pain.  Ross justified his pot smoking with his physician's recommendation as authorized in the voter approved Compassionate Use Act of 1996.  Ross's employer refused to allow Ross to work for the Company pursuant to the company's drug free workplace policy.

Ross sued Raging Wire, claiming that the company violated his rights as a "disabled individual" under the State's job bias statute.  Ross claimed that he was entitled to the same accommodation as any other disabled job applicant, and that the company should overlook his pot smoking because it was medically recommended.  (Note: physicians cannot prescribe medical marijuana under federal law).  He likened his condition to any other disability where the employee takes medication while on the job.  Only in this case, his medication of choice was marijuana.  In addition, Ross brought a claim for so-called wrongful termination, claiming that the Company's refusal to employ him violated the spirit, if not the letter, of the medical marijuana law.

The court made quick work of Ross' claim.  The court dismissed both of his claims by noting that the State's job bias statute simply doesn't afford protection to people who use illicit drugs.  Nor, does it require employers to accommodate the use of illegal drugs.  The court reasoned that nothing in the medical marijuana initiative suggests that voters intended the measure to address the respective rights and duties of employers and employees.  Rather, the law merely exempts medical pot users and their primary caregivers from criminal liability under state drug laws for the possession and use of marijuana following a physician's recommendation.  In doing so, the court also pointed out that federal law still makes it a crime to possess, use or sell marijuana, and that employers needn't tolerate such illegal behavior.

This decision is significant for employers in several respects.  First, it resolves a debate that's been brewing ever since the voter initiative was passed some 12 years ago.  The court ruling clarifies that employers simply don't have to tolerate illegal drug use and may refuse to employ people who test positive for the use of illegal drugs.  In doing so, the court reaffirmed the validity of its 1997 decision upholding the right of an employer to drug test job applicants and to refuse employment to applicants who fail the test.  The decision also implicitly reaffirms an employer's right to establish and maintain a drug free workplace policy.  Finally, the court decision clarifies that California's employers have no duty whatsoever to accommodate an employee's use of illegal drugs, even if medically prescribed.

While the court's decision is certainly welcome news to California's employers wishing to drug test job applicants, it makes no mention whatsoever of how far an employer can go in using mandatory drug testing of employees suspected of drug use on the job or otherwise.  The California Supreme Court has yet to green light employee drug testing like it has done with job applicants.

Employers wishing to implement a drug free workplace policy or discipline employees under an existing policy should review the decision with their contact at the Firm.  We stand ready to assist you if you have any questions about the application of this case to your business.