Labor Employment Law Blog

In September 2005, we reported on the California Court of Appeal's decision in Ross v. Ragingwire Telecommunications Inc., 132 Cal. App. 4th 590, finding that an employer may refuse to employ a person who is using marijuana in accordance with the Compassionate Use Act of 1996. (See, "Court Holds That A Company May Terminate A Medical Marijuana User," September 14, 2005.) However, on November 30, 2005, the California Supreme Court granted review of the case, rendering the prior decision invalid. As a result, employers are again left to question their rights and obligations under the State's disability accommodation laws versus the federal ban on marijuana use.

The Ross decision arose from a refusal-to-hire situation. In September of 2001, Ragingwire Telecommunications, Inc. hired Gary Ross as a lead systems engineer. Ragingwire required Ross to take a drug test. Ross took the drug test before he began working, but the test result had not yet been obtained when he started his new job. When the drug test result came back positive for the main chemical in marijuana, Ragingwire suspended Ross. Ross then provided a note from his physician recommending the use of marijuana to help alleviate chronic back pain, but Ragingwire still terminated Ross' employment because of his marijuana use.

Ross filed a lawsuit claiming that this termination violated the California Fair Employment and Housing Act ("FEHA"). Ross alleged that Ragingwire discriminated against him based upon his disability because it failed to provide him with the reasonable accommodation of permitting him to use marijuana in accordance with the Compassionate Use Act. Ross also asserted that his termination was in violation of public policy created by the passage of the Compassionate Use Act.

The Court of Appeal held that, while the Compassionate Use Act decriminalized medical marijuana use under California state law, the Act did not and could not decriminalize marijuana use under federal law. The Court of Appeal rejected Ross' claims based on a finding that the FEHA does not require an employer to accommodate an employee's use of medical marijuana. Though some employers might be willing to employ persons using marijuana pursuant to the Compassionate Use Act, the Court of Appeal determined that the language of the FEHA did not permit a court to require employers to do so.

Because the California Supreme Court has granted review of the Court of Appeal's decision, the case can no longer be cited as legal authority. Employers should, therefore, be cautious when making hiring and termination decisions based on an applicant's or employee's use of medicinal marijuana. We will provide a further update once the California Supreme Court publishes its decision.