marijuana_legal_gavelIn the 2008 case Ross v. RagingWire Telecommunications, Inc., the California Supreme Court held that employers are not required to accommodate an employee’s medicinal marijuana use irrespective of the Compassionate Use Act of 1996 [Health & Safety Code section 11362.5], which provides that persons using marijuana under the care of a physician are not subject to criminal prosecution by the State.  The Court commented that the Compassionate Use Act does not grant marijuana the same status as a legal prescription drug and noted marijuana is illegal under federal law, and therefore cannot be “completely legalize[d] for medical purposes.”  The Court reasoned that, since the California Fair Employment and Housing Act [Government Code section 12940 et seq. “FEHA”] does not require employers to accommodate illegal drug use, the employer could lawfully terminate the employee for using medical marijuana.  How relevant is that decision to employers seven years later?  Considering the direction many states, including California, are taking regarding use and full legalization of marijuana, the decision may become less relevant than it was in 2008.

Although marijuana remains illegal under federal law, the approach the federal government is taking shows greater deference to states and their marijuana laws.  For example, in 2013, the U.S. Department of Justice (DOJ) basically abdicated its enforcement authority in states like Colorado and Washington (which have legalized recreational use), asked that the states create “strong, state-based enforcement efforts,” and noted that the DOJ “will defer the right to challenge their legalization laws at this time.”  In effect, the federal government said, “we surrender.”

The DOJ’s decision is important to states, and particularly employers, because disability advocates could use it to push marijuana into a protected category that would require employers to accommodate medicinal use.  It may take just one employee who is successful in a wrongful termination lawsuit to start the ball rolling towards an accommodation requirement.  Most state courts that hear the claims from medicinal marijuana users who have been fired for testing positive continue to rely on the fact that marijuana is illegal under federal law.  But, how long will this analysis hold up considering the number of states that are moving towards full legalization of marijuana and the DOJ’s deference to states to enforce its marijuana laws?

The practicalities of distinguishing between medicinal marijuana and other legal prescription drugs also contribute to the uncertainty of how the law may change for employers.  The reality is that an employer cannot terminate an employee because he has been prescribed pain medication, such as codeine.  Even more importantly, an employer may not necessarily be able to terminate an employee because he is under the influence of codeine while at work—it is going to depend on a number of circumstances, such as whether safety is a concern or work performance.

Many believe that placing medicinal marijuana in the same category as legal prescription drugs might not create the chaos that anti-marijuana proponents espouse.  An employee could test positive for codeine because it stays in the system for up to two days.  This, however, does not mean the employee was under the influence of codeine while at work.  The actual effect of codeine, depending on the dose, is only a few hours.  The discrepancy is apparent.  An employee could test positive for codeine but not be under the influence.  Should he be fired?  The same analysis can apply to medicinal marijuana.  The effects of marijuana may last a few hours, but the evidence of the drug (THC) could remain in the system for several days and as a long as a month.  In contrast to the situation with codeine, under existing law, an employee who is not under the influence of medicinal marijuana at work but tests positive for THC can be lawfully terminated.

Based upon the courts’ decisions in various states, medicinal marijuana is not protected because the federal government still considers it to be illegal.  The Colorado Supreme Court ruled on June 15, 2015, that an employee was lawfully terminated for testing positive for marijuana, but that case was brought under the theory of lawful off-duty conduct, not disability discrimination.  The argument against disability accommodation, however, may start to break down over time and employers could be forced to make difficult employment decisions.  Ross v. RagingWire Telecommunications, Inc. is still relevant to the extent the FEHA does not require an employer to accommodate an employee’s use of medicinal marijuana.  That case, however, could be subject to increased challenges as states continue to adopt laws that allow marijuana use.

Presently, there is a movement in California to put legalized marijuana on the ballot in 2016.  Considering California’s generous employee protections, it would not be surprising if California is the first to change course and allow employees to claim that medicinal marijuana use should be accommodated for employees with disabilities.  In the meantime, employers can continue to treat medicinal marijuana as an illegal drug that need not be accommodated in the workplace.