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November 7th, 2007 
James Peters Yesterday the California Supreme Court heard arguments in Ross v. Ragingwire Telecommunications, Inc.
In this case, the employee was refused employment because his pre-employment drug test came back positive for marijuana. The employee had been using medical marijuana at the direction of his physician to deal with lower back strain and muscle spasms.
Case Background
Under California's Compassionate Use Act, patients cannot be prosecuted under state law for using or possessing medical marijuana.
However, while federal authorities do not usually pursue prosecution against those who simply use marijuana and do not sell it, the federal Controlled Substances Act still makes possession of marijuana illegal.
California's Fair Employment and Housing Act ("FEHA") makes it illegal for an employer to terminate an employee as a result of their disability or to fail to "reasonably accommodate" their disability.
The collision of these three laws is messy and the answer as to which should prevail is very unclear.
Criminal Law Meets Employment Law
The Supreme Court now has to interpret the FEHA while considering the two drug laws as a backdrop.
To simplify the discrimination issues in terms of a "normal" disability discrimination case, just substitute the word "Vicodin" for "marijuana". Generally, an employer could not terminate an employee for using Vicodin in connection with their disability.
Under these facts, the employee would have a fairly sound disability discrimination case under California law. However, the fact that marijuana use or possession is illegal under federal law complicates things considerably.
Employment Law Meets Criminal Law
For the Court to hold in Ross' favor, they would essentially prohibit employers from terminating employees for engaging in what is essentially criminal conduct.
The FEHA does not really address whether employers must allow employees to engage in illegal conduct outside of work as part of a "reasonable accommodation" for a disability.
Basically, the law is silent on this issue, but this analysis could turn on the word "reasonable". Is allowing an employee to break the law at home on their own time reasonable?
I do not pretend to know the answer to that question.
My Opinion
If I was deciding this case, I would say that the question of legality or illegality on the part of the employee does not enter into the analysis for the purposes of FEHA liability. Illegality should only be considered if it affects the employer.
It is important to note that Ross only used the marijuana at home and did not bring it to or use it at work. As long as the employee does not use the medical marijuana during work hours, I think it is no concern of the employer. I bring this caveat up because if they were to use at work, the employer would essentially be helping the employee commit a crime if they provide a place or time to use it.
I also think that employers would not have to allow the employee to work if they are under the influence at work and doing tasks that would make them dangerous to themselves or others.
Many of the opponents to Ross point to this as a major issue. How can an employer know if the employee has recently used and is safe to have at work? However, I think this is a red herring, because this would also be a problem where an employee has to use Vicodin, which arguably can impair function much more than marijuana does.
The Court's Opinion
Of course, my opinion does not matter much. What really matters here is what the California Supreme Court thinks.
Based on the transcripts from the arguments yesterday, it roughly seems to be a 3-3 tie among the justices present in deciding the case.
In a dramatic twist, Justice Carol Corrigan was out with the flu and could not attend oral arguments. She will be watching a videotape of the arguments to help her decide, but we have no way of guessing what she thinks of the case.
The Court has 90 days to issue a ruling. It should be very interesting reading.
What do you think? Let us know in the comments below...
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Federal law should supercede State law. Therefore, if a person is using a controlled substance which is considered illegal, that person has lost his case. This has already been proven if the person was a truck driver.
I am very moved by the above article and feel exactly as the author so aptly put it. I have a MM certificate and am very concerned that I may be jeopardizing my employment with the state of CA. I am frightened, actually, and therefore am reaching out to organizations such as these.
I am not a "pothead" and just use a small bit each night for the relief of Restless Leg Syndrome. Any information to better clarify these issues would be most appreciated.
After working Contract Security (Andrews International) for Countrywide Home Loans for the past 4 years, during the transition to the new Contractor (G4s Wackenhut) submitted to a drug test which I disclosed the use and certification of medical marijuana in very small amounts to relieve neck muscle spasams and pressure to the Occipital Nerves that cause dabilitating headaches at bedtime, was approched by my direct supervisor an told that Wackenhut would not accept my employment with them.
During my 4 years on the Countrywide account, I provided exemplary performance including an outstanding attendance record, two employee of the month awards amongst hundreds of officers, and service above and beyond the expected duties which also incuded contribution to the training of new hire officers by the production of training material created with MS Powerpoint.
After speaking with many officers I came to the awareness that there are officers using other drugs such as Methadone and Morphine during work hours that were fully accepted for employment with Wackenhut.
Hopefully, with the new administration in the White House, this non work related usage will be accepted Federally as benaficial to some and allowences made to accomodate those who are assets to the company regardless of their medical marijuana usage.
I was fired from my job for using medical marijuana to help treat pains and stresses related to my amputee. Now I am jobless with no income. How much worser can this life be? There are no justices for disabled people in the State of California.