CA Supreme Court Rules Employers Can Discriminate Against Workers Using Medical Marijuana

Jan 24th, 2008. The California Supreme Court ruled 5-2 that employers can drug test and fire workers for using medical marijuana. The court dismissed a lawsuit brought by Gary Ross under the state's Fair Employment and Housing Act (FEHA) arguing that he had been wrongfully denied employment by RagingWire Telecommunications on account of testing positive for past use of marijuana on a urine test.

The court took a narrow interpretation of Prop. 215, ruling that it did not create a general right to use medical marijuana, but only protected patients from criminal sanction for possession or cultivation of marijuana.

Sponsors of Prop 215 contested this interpretation. "Prop. 215 was intended to give patients the same right to use medical marijuana as other, legal prescription drugs," said California NORML Coordinator Dale Gieringer, a co-author of the initiative.

Assemblyman Mark Leno announced that he will sponsor a bill to restore workers' rights to use medical marijuana. "Today's California Supreme Court ruling strikes a serious blow to patients¹ rights," stated Leno. " Through the passage of Proposition 215 in 1996 and SB 420 in 2004, the people of California did not intend that patients be unemployed in order to use medical marijuana."

In the meantime, the court's decision leaves the door open for discrimination against medical marijuana users via drug urine tests, even though not a single FDA study has ever proven that urine testing is either safe or effective in ensuring job safety. Text of the court's opinion in Ross v. RagingWire.

Excerpt from majority opinion by Justice Kathryn Werdegar:

"Plaintiff's position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. ßß 812, 844(a)), even for medical users (see Gonzalez v. Raich and U.S. v Oakland Cannabis Buyers' Cooperative). Instead of attempting the impossible, as we shall explain, California's voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees."

Excerpt from dissent by Joyce Kennard (joined by Carlos Moreno)

The majority's decision leaves many Californians with serious illnesses just two options: continue receiving the benefits of marijuana use "in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or [] other illness" ... and become unemployed, giving up what may be their only source of income, or continue in their employment, discontinue marijuana treatment, and try to endure their chronic pain or other condition for which marijuana may provide the only relief. Surely this cruel choice is not what California voters intended when they enacted the state Compassionate Use Act. Nor is this cruel choice something that the FEHA permits. One of the FEHA's stated purposes is "to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement on account of . . . physical disability . . . [or] medical condition . . . ."

[However, Kennard also ruled that employers could not be sued for wrongful discharge in violation of public policy for firing medical marijuana users:

I agree with the majority, however, that because federal law prohibits marijuana possession (21 U.S.C. ßß 812, 844(a)), discharging an employee for off- duty, physician-recommended marijuana use will not support a claim of wrongful discharge in violation of public policy (see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167). ]

Update: Jobs Aren't Protected for Medical Marijuana Users
By Peter Hecht, Sacramento Bee
March 24, 2010

Governor Vetoes Employment Rights Legislation

See Stephen Colbert's August 11, 2008 mock interview with Gary Ross