Gary Ross, the military veteran who urged his employer to accommodate his medical use of marijuana, has failed to convince the Supreme Court of California to revive his case.  On January 24, 2008, the Court affirmed (5 - 2) the trial and appellate court decisions that RagingWire Telecommunications was not required to employ Ross, who tested positive for marijuana, even though his use of the drug has been decriminalized under California’s Compassionate Use Act.

As discussed in an earlier posting, Ross argued that his former employer, RagingWire, had discriminated against him under the California Fair Employment and Housing Act by terminating him because of his positive drug test which resulted form his use of marijuana for his disability.  He also alleged that he had been wrongfully discharged as a matter of public policy.  Yesterday’s decision rejects Ross’s disability discrimination claim for one simple reason:  The Compassionate Use Act provides only that individuals who use marijuana pursuant to a recommendation from a health care provider have a defense to criminal prosecution.  Noting that California voters cannot obscure federal laws which state that the drug poses a risk of abuse, the Court concluded that the Compassionate Use Act simply fails to address the rights of employers and employees.  The Court further observed that any effort to enact such a law would likely generate significant controversy, and it declined to read such a requirement into the limited protections of the statute.

During oral argument, both parties discussed the Court’s ruling in Loder v. City of Glendale, a decision notable for its balance of individual privacy rights and employer drug testing policies. The Loder case proved to be significant in the outcome of RagingWire, as the Court reaffirmed that an employer’s interest in ensuring a drug-free workplace was legitimate “[i]n light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees — increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover . . . .”  The RagingWire decision concludes, “[t]he employer’s legitimate concern about the use of illegal drugs also led us in Loder to reject the claim that preemployment drug testing violated job applicants’ state constitutional right to privacy.”  Given this reaffirmation of California’s public policy permitting employers to test applicants for illegal drugs, Ross also lost his claim for wrongful discharge. 

While employers rejoice, the decision is a buzz kill for those hankering for a decision that would broaden the rights of workers who use marijuana for medicinal reasons in the 11 states that have taken steps to decriminalize the use of the drug for that purpose.  Ross’s supporters have vowed to seek legislative action to broaden state law employment protections for those who use marijuana medicinally.  Judge Kennard’s strongly worded dissent emphasizes that employers have a legal obligation to accommodate disabled employees’ use of legitimate prescription medications.  This is true even in cases where those drugs affect performance in a manner comparable to the use of marijuana.  This argument is likely to fan the flames of future efforts to seek workplace protections for those workers; however, it most likely will fail given the difference in status between lawful prescription drugs and marijuana, the possession of which remains illegal under federal law.

For a comprehensive discussion of the decision, see Littler's ASAP "California Employers No Longer Holding Their Breath:  Applicants Using Medical Marijuana May Be Denied Employment" by Rod M. Fliegel and Nancy N. Delogu.