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January 24th, 2008 
James PetersWell, the California Supreme Court finally released its opinion in Ross v. Ragingwire Telecommunications, Inc., S138130, today and I have to say I am disappointed with the opinion, although I think the dissenting opinion was completely on the mark.
The Decision
The Court decided that employers can terminate employees in California who use medical marijuana with a doctor's prescription for a valid medical reason and not be held liable for doing so under state employment discrimination laws.
The majority spent almost all of their opinion talking about how the Compassionate Use Act of 1996 (the referendum that decriminalized medical marijuana under California law) does not explicitly say employers are prohibited from terminating an employee for using medical marijuana at home.
However, the majority seems to have forgotten that the case was brought under California's Fair Employment and Housing Act ("FEHA") and not the Compassionate Use Act ("CUA"), seemingly concluding that because the CUA was not violated, neither was the FEHA.
The only reason that the CUA has any application here at all is by virtue of the fact that it is the reason that the plaintiff can say he was not breaking state law. Arguably, if state law says something is illegal, then state anti-discrimination laws cannot be held to protect an employee who breaks it. However, the fact that the plaintiff broke no California law should mean that the legality or illegality of the conduct is a non-issue.
FEHA Disability Discrimination Analysis
In California, employers are required to "reasonably accommodate" individuals with disabilities, which basically means that they need to work with the employee and their doctor to determine what the employee needs to be able to do their job and treat their disability. In Ragingwire, the employee simply wanted his employer to allow him to use medical marijuana at home during non-work hours.
The employer generally must allow any accommodation that does not cause it to suffer an "undue hardship". In order avoid liability for refusing a particular accommodation, the employer must demonstrate what sort of undue hardship it would suffer.
Here, the Defendant pointed to virtually no undue hardship it would suffer by letting Ross use his medical marijuana at home during non-work hours. Instead, it pointed to "red herrings" (which the majority readily adopted as some of its justifications) such as:
- We cannot be forced to allow him to use drugs at work--The Court admits that Ross explicitly stated he was not asking for the right to use medical marijuana at work.
- We cannot be held responsible for him coming to work under the influence--Again, Ross was not asking to be allowed to be under the influence at work. This is exactly the same as if an employee had an Oxycotin or Vicodin prescription and could potentially show up at work under the influence of their medication.
- We cannot condone our employees violating the law--If you let your employees bet on sports such as running football pools, this is essentially the same thing. Under federal law simple possession of a small quantity of marijuana is a misdemeanor punishable with a maximum $1,000 fine and/or a year in jail, whereas gambling in California is punishable by a $1,000 fine and/or six months in jail. However, this argument is irrelevant where an employee is only using medical marijuana at home during non-work hours because an employee breaking a law on their own time does not create an undue hardship.
None of these arguments proves that the employer would suffer an undue hardship under these circumstances. Under the FEHA, a claim of hardship generally must be based on either (1) the fact that the accommodation would cost the employer too much to implement, or (2) it would be too inconvenient to implement the accommodation. (See Cal. Gov. 12940(m).)
The majority in this case simply glosses over this whole analysis (which is really the only question they needed to answer here) by conclusively stating "The FEHA does not require employers to accommodate the use of illegal drugs" with virtually no support for that statement. (p. 5)
The majority tries to support this statement by going into a long analysis of cases where it has held that (1) employees can be drug tested under certain circumstances, and (2) employees can be terminated for "abusing" drugs that have no "legitimate medical explanation". Of course, neither of these arguments really has any application to this case, but I guess it sounds good.
Me and the Dissenters Make 3
The dissenting opinion, written by Justice Kennard (who was joined by one other justice to make the decision 5-2) gets the analysis right and reaches the right conclusions, in my opinion. Of course, my earlier post about this case makes his same points, but because we both seem to be in the minority it will probably be quite some time before our opinions are adopted.
It will, however, be interesting to see what the rest of the blawgosphere things about this decision.
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The above case would be my case if I thought it worth pursuing or could be won or advance a much needed clarity to the use of medical marijuana in the work force. I did not know my employer Walgreens began a random drug testing program and was tested. After the test I approached my store manager (I am an assistant manager)and explained I would not pass due to having a Rx for marijuana. I explained I got it for my work injury so that I would not have to work using Soma and other pain medications. They created difficulty in mental alertness on the job but using the marijuana at night had no affect to my work or ability to work but allowed me to continue working.
I was given a "last chance program" run by a company named First Advantage SAP Services. I cannot begin to explain the unprofessional treatment I have had to endure and I still have not been reassessed and returned to work. All my employee pay benefits have expired and I am currently out with no pay. I have been a victim of this companies inability to properly run their company and they even admitted to losing me in the cracks...I am normally a happy and outgoing person however I now live in continual fear of not meeting their continual rules and time frames however there seems to be no protection for me or rights.
I have emailed them and told them I understand mistakes happen however if I lose my job due to their incompetence I would pursue any legal means available to me. I have no idea if I have any legal means available at this time to me but would be willing to join you or a group that advocates changing the law to include "reasonable employee rights or protection"in this manner.
Thanks for all your work in this area.
Kathy
I got fired for using medical marijuana because I have a permanent physical dsability. But in my case, medical marijuana was just an excuse to get rid of me. The drugs use culture of my former company existed long before I worked there. My current supervisor whom have worked there for more than ten years openly admitted to be addicted to crack cocain and other drug like meth are still using them as of today. But somehow, the HR manager doesn't realizes this.
I HAVE MULTIPLE SCLEROSIS AND HAVE BEEN OUT OF WORK FOR 4 YRS. I WENT BACK TO SCHOOL AND GRADUATED WITH HONORS AS A MEDICAL ASSISTANT. DUE TO THE ECONOMY, I HAVEN'T FOUND WORK BUT, MY BACK UP EXPERIENCE IS IN COLLECTIONS.
I RECENTLY WAS HIRED AT A CALL CENTER FOR COLLECTIONS AND WAS TOLD AT MY INTERVIEW THAT THEY WOULD BE DOING A BACKROUND CHECK AND DRUG SCREEN. I THEN TOLD MY POTENTIAL SUPERVISOR THAT I HAD MEDICAL MARIJUANA FOR MY DISABILITY. HE SAID "JUST GIVE YOUR DOCUMENTATION TO THE CLINIC STAFF". THE NEXT DAY, I WAS ALREADY WORKING, AND THE CLINIC CALLED ME TO FAX OVER MY DOCUMENT STATING THIS. THEY NEVER TOOK ONE WHEN I GAVE IT TO THEM BUT, NOW FELT THEY NEEDED ONE FOR MY FILE. THE DOCTOR THEN SAID, "IT'S UP TO YOUR EMPLOYER IF THEY WANT TO HIRE YOU".
THE NEXT DAY I WAS FIRED! DO I HAVE ANY RIGHTS? I DON'T USE MARIJUANA ONLY WHEN I APPLY MY INJECTION, WHICH IS ONCE A WEEK.
CAN YOU HELP ME?
I'M A GOOD EMPLOYEE AND VERY EAGER TO GO BACK TO WORK. I REFUSE FOR MY DISABILITY TO CONSUME ME...BUT IT'S HARD WHEN EMPLOYERS DON'T GIVE ME A CHANCE.
THANK YOU,
[NAME AND E-MAIL EDITED OUT]
The difference amid amateur consumption and medical employment of marijuana begs to be acknowledged. While I think that a responsible adult should have the right to use marijuana recreationally, I do think, without doubt, permitting an ill person use of a plant with a long history of medical value had better be accepted and legal. Cannabis has a enormous potential as a medicine and more awareness and acceptance is necessary. In Summary, legalize it!
The above case would be my case if I thought it worth pursuing or could be won or advance a much needed clarity to the use of medical marijuana in the work force. I did not know my employer [EDITED for Privacy] began a random drug testing program and was tested. After the test I approached my store manager (I am an assistant manager)and explained I would not pass due to having a Rx for marijuana. I explained I got it for my work injury so that I would not have to work using Soma and other pain medications. They created difficulty in mental alertness on the job but using the marijuana at night had no affect to my work or ability to work but allowed me to continue working.
I was given a "last chance program" run by a company named [EDITED for Privacy]. I cannot begin to explain the unprofessional treatment I have had to endure and I still have not been reassessed and returned to work. All my employee pay benefits have expired and I am currently out with no pay. I have been a victim of this companies inability to properly run their company and they even admitted to losing me in the cracks...I am normally a happy and outgoing person however I now live in continual fear of not meeting their continual rules and time frames however there seems to be no protection for me or rights.
I have emailed them and told them I understand mistakes happen however if I lose my job due to their incompetence I would pursue any legal means available to me. I have no idea if I have any legal means available at this time to me but would be willing to join you or a group that advocates changing the law to include "reasonable employee rights or protection"in this manner.
Thanks for all your work in this area.
K [EDITED for Privacy]
What you people need to do is recognize the discriminatory nature of the drug, being a federal offense, do not under any circumstances expose your medical records to your employer, medical confidentiality is your right. During your background check there is no way your employer can find and expose your cannabis treatment. Under these circumstances you must detoxify your body of the THC stored in your body fat, this can be done naturally, or with a supplement. With the use of a supplement, you drink the detox drink before your drug test, and you are clean... It is as easy as that, exposing your medical cannabis treatment to your employer will only harm you... in less words, Cannabis treatment is a federal offense, you have to cheat your drug test, and keep your treatment a secret. That or get a lawyer and spend your entire life savings trying to battle your way to the supreme court, only to get further discriminated against. Only 25% of states offer cannabis treatment, unfortunately the odds are against all cannabis users in the workforce.
Also, I forgot to add, under California law a third party must administer the drug test, giving you enough time to purchase a detox drink...
Also, what people do not realize is that it is illegal for businesses to perform on site drug tests, they must be performed by a third party, meaning a lab. So an hour before you go to the lab pick up a detox drink, and never ever expose your medical records to your employer.
I was denied employment on the basis that I am a Medical Marijuana Patient. Seems like that could have made me sign an agreement stating that I wouldn't use at work would be fine, but just a patient "no, not even with an MD's recommendation." I mean really, isn't that just a bit too far?
I have a Life Threatening illness and the difference in my ability to manage my disease has been Medical Marijuana. Six months of Hell, four hospital stays and three surgeries later, MM has given me the ability to be get through the most difficult challenge of my life.
I now will be returning to work again, and looking forward to it. My Position requires Office and Field work.I have to be clean before going back and that requires me not using my MM.
alcohol=evil, Cannabis=remedy mentioned in January of a detox drink an hour before, in the event of a Drug Test to show a negative result. I seriously doubt it. Name the drink. And can anyone add any validity to those statements? Marijuana stays in your body for a month and I can fake a Drug Test in an hour. Are you High?
I dont wish to be brash, but after what I have gone through the last six months and almost leaving a wife and eight year old daughter behind because this disease almost cost me my life, I have lost patience with the whole enviroment on both sides of the argument. Two Faced Politicians and Lawmakers thinking they know what is best for me and my health, and and Dispenseries filled with seemly heathly young people providing their "Recommendations" for varification while yet another tye-dyed poster of Bob Marley hangs on the wall inside this "Medical Clinic".
I want my Freedom and Liberty to make my own choices. I reserve the right to think for myself without Government intrusion or the current social culture of opinion at the time. But if I have to lie or fake a Drug Test to treat my disease and stay alive longer or have a better quality of life for my wife and daughter than so be it.
Can anyone name any Detox Drink that actually works as stated above? Can anyone actually give an account of their own success with such a drink? Let me know. I will be checking this site periodically. I would like to test for it for myself. For many, I believe, this issue really is a matter of life and death and the ability for a better quality of life, not just for the user of Medical Marijuana, but for their loved ones as well.