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02/01/2008 - Court Rules that Companies Can Fire Employees for Legal Medical Marijuana Use
The California Supreme Court ruled last week that employers can fire employees who test positive for marijuana use even if they are taking the drug as recommended by a doctor. Furthermore, employees can be fired for using medical marijuana off-duty even if the use does not impact their job performance.
In the 5 to 2 decision, California’s High Court supported Sacramento-based RagingWire Telecommunications Inc.’s right to fire an employee after a positive drug test result. The employee, Gary Ross, had just started working as a lead systems administrator at the Sacramento company when he tested positive for marijuana use in 2001.
Ross started using medical marijuana in 1999 as suggested by his doctor. Once notified of the positive result, Ross presented a copy of his doctor’s recommendation that he smoke marijuana to help relieve back pain from an injury he sustained while in the Air Force. In 1983, Ross fractured three lumbar vertebrae when he fell off the wing of an F-16.
Five days after the positive result came back and about a week after starting his new job, Ross was fired for violating the company’s drug free workplace policy. Ross then sued RagingWire, claiming the company failed to accommodate his disability as required by law and that his rights had been violated. Before reaching the California Supreme Court, the case was heard in a trial court and an appeals court. In both instances, the decision favored the employer, RagingWire.
In its decision, the California Supreme Court argued that the state’s medical marijuana regulation addresses criminal law – not employment law. While California’s Compassionate Use Act of 1999 protects medical marijuana users and their doctors from criminal penalties, it does not require employers to accommodate marijuana use by their employees, according to the majority opinion.
Approximately 300,000 people in the United States use medical marijuana, according to Americans for Safe Access (ASA), a non-profit organization based in Oakland, Calif. In 2005, the organization began tracking how California employers respond to medical marijuana use by employees. So far, ASA has collected hundreds of reports of employees who have either been fired, threatened with termination or denied employment because of marijuana use or a positive drug test result.
The Oregon Supreme Court has also sided with the employer in a case involving medical marijuana use by an employee. Robert Washburn, a millwright, was fired in 2001 after repeatedly failing drug tests. He sued his employer, Columbia Forest Products, which argued that Washburn’s use of medical marijuana violated the company’s drug policy. The court determined that Columbia did not have to accommodate Washburn’s use of medical marijuana.
According to The National Organization for the Reform of Marijuana Laws (NORML), 12 states have legalized medical marijuana use. These states include Alaska, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.
Safety-sensitive employees regulated by the Department of Transportation (DOT) are prohibited from using marijuana even when it is recommended by a physician in a state where medical use is legal. After a positive test result for THC, a chemical found in marijuana, a DOT-regulated employee must complete the return-to-duty process, which includes passing a drug test, before returning to a safety-sensitive position. These employees are also subject to follow-up testing.
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