Legal Updates & News
Legal Updates
California Supreme Court Affirms Employer’s Ability
To Terminate Employee For Off-Duty Medical
Marijuana Use
January 2008
by Christine E. Lyon
By Christine Lyon [1]
May a California employer refuse to hire a candidate who tests positive for marijuana use, if the
candidate is qualified to use marijuana for medical purposes under California law? Does it matter
that such marijuana use is still illegal under federal law? On Thursday, the California Supreme Court
held that California law does not prohibit an employer from refusing to employ a medical marijuana
user, even if his marijuana use is permitted under California law.[2] This case highlights the tension
between a job applicant’s expectation of privacy regarding off duty conduct and the employer’s
desire to prohibit even off duty drug use by its employees.
Background
The facts before the court were fairly straightforward. The plaintiff, Gary Ross, suffered a back injury
during his military service, for which he receives disability benefits. Under California’s
Compassionate Use Act, Mr. Ross is allowed to use marijuana to treat his back pain and muscle
spasms. While his use of medical marijuana is permitted under California law, it remains illegal
under federal law.
In September 2001, Mr. Ross received a job offer from RagingWire Telecommunications, Inc.
(“RagingWire”) for the position of lead systems administrator. Mr. Ross accepted the job offer and
took the mandatory pre employment drug test. Before taking the drug test, he gave the clinic a
written recommendation from his doctor to use marijuana for medical purposes.[3] Not surprisingly,
Mr. Ross tested positive for marijuana use.
By the time the clinic informed RagingWire of Mr. Ross’s positive drug test results, he had been
working for RagingWire several days. RagingWire suspended Mr. Ross based on his positive drug
test results. At that time, Mr. Ross gave RagingWire documentation of his status as a qualified
medical marijuana patient and explained that he used marijuana to relieve chronic back pain.
RagingWire confirmed this information with Mr. Ross’s doctor but ultimately terminated his
employment based on his off duty marijuana use.
Mr. Ross filed a civil lawsuit against RagingWire, alleging that his use of medical marijuana was
authorized by California’s Compassionate Use Act and that it was unlawful for RagingWire to
terminate him for using medical marijuana. Specifically, he claimed that RagingWire discriminated
against him based on his disability (chronic back pain from injuries sustained during military service),
by refusing to permit his use of the pain medication (marijuana) recommended by his doctor. He also
claimed that RagingWire terminated his employment in violation of California public policy. In
response, RagingWire argued that an employer is not required to tolerate drug use that is illegal
under federal law, even if it may be permitted under California law.
Conflicting California and Federal Law on Medical Marijuana Use
Related Practices:
zEmployment and Labor
zPrivacy and Data Security
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