Sept. 7, 2005 No Protection for Pot Smoker

Summary

Yesterday, a California Court of Appeal ruled that an employer may lawfully terminate an employee who uses marijuana with a doctor's recommendation pursuant to California's Compassionate Use Act.

Details

Plaintiff Gary Ross had a chronic back condition and used marijuana with a doctor's recommendation pursuant to California's Compassionate Use Act. After being conditionally hired by defendant Ragingwire Technologies, Ross failed his preemployment drug screen, and his employer was so notified approximately one week into his employment. The employer terminated Ross for failing the drug screen.

Ross sued for both disability discrimination, failure to accommodate and for wrongful termination. His arguments were essentially that it was unlawful to fire him for lawfully using a medication recommended by his doctor and authorized by California law. The employer argued that its termination decision couldn't have been unlawful because, according to federal law, marijuana is illegal, and employers can certainly terminate employees who use illegal drugs. The trial court agreed with the employer, as did the Court of Appeal.

What this Means

This opinion, if it is not reviewed by the California Supreme Court, is good news for California employers, especially those who have been struggling with appropriate ways to handle medical marijuana users. Put simply, California employers may now terminate marijuana users, irrespective of why the employee is using marijuana.

There is one cautionary note, however: the plaintiff in the Ross case didn't rely upon California Labor Code section 97(k), which prohibits employers from making employment decisions against employees based upon otherwise lawful off-duty activity. Although it is doubtful whether this type of alternative theory would have changed the court's policy-driven result, employers should be aware of this untested avenue.

This E-Update was authored by Joe Connaughton. For more information, please contact Mr. Connaughton or any Paul, Plevin attorney at 619-237-5200.

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