Jan. 23, 2008 California High Court Affirms Termination of Employee for Medical Marijuana Use


Earlier today, the California Supreme Court issued a much-anticipated decision [click here to view] regarding a former employee terminated for testing positive for marijuana use, which he lawfully had utilized under the Compassionate Use Act of 1996 (Health & Safety Code § 11362.5).  In sum, the Court held that employers have an undisputed right to conduct pre-employment drug testing and to fire, or refuse to hire, employees who fail a drug test.  The Court noted that the Act was silent on any impact to the employment relationship.


Gary Ross had a chronic back condition and used marijuana with a recommendation from his doctor pursuant to the Compassionate Use Act.  After being conditionally hired by defendant RagingWire Technologies and shortly after he began, Ross failed his pre-employment drug test and his employer was notified.  Ross informed his employer of his doctor’s recommendation, but the employer nonetheless terminated Ross for failing the drug test.

Ross sued for disability discrimination, failure to accommodate and for wrongful termination under California state law.  He contended that his use of marijuana under the Act was no different than being fired for using other legal medications, that it did not affect his performance or impact his employer’s legitimate interests, that it was the only effective way to treat his pain, and that he only used it off-duty, off-premises.  The employer argued that marijuana is still illegal under federal law and the Act only exempts medical marijuana users from certain, specific criminal sanctions, but does not handcuff employers from terminating employees who use illegal drugs.

The California Supreme Court agreed with the employer and upheld both the trial court and Court of Appeal decisions.  The Supreme Court emphasized the difference between prohibiting use of marijuana – which the Act clearly intends to allow – and making employment decisions based on legitimate reasons, such as the well-studied effects of illegal drug use on the work environment.  Because the employer’s decision did nothing to deny access to marijuana, the Court held that inferring a duty to reasonably accommodate an employee by waiving drug testing requirements (or by recognizing a wrongful termination claim based on the same) would significantly expand the law beyond that which voters intended.

What This Means

This opinion is a breath of fresh air (and common sense) from the California Supreme Court for employers.  Indeed, it reaffirms that employers not only have a legitimate interest in pre-employment drug testing, but that employers need not accommodate marijuana usage in the workplace.

This E-Update was authored by Melissa Listug Klick. For more information, please contact Ms. Listug Klick or any Paul Plevin attorney at (619) 237-5200.