Well, 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.

In the United States, employers must actively engage in an "interactive process" with disabled employees to try and find a "reasonable accommodation" for their disability, even if no such accommodation actually exists.

What is an "Interactive Process"?

What this means is if an employer knows one of their employees is disabled and they suspect that employee might need some sort of accommodation (e.g. ergonomic keyboard, wheelchair ramp, a chair to sit in while working, etc.), they must approach that employee and work with them to determine if such a reasonable accommodation exists.

The employee does not have to ask for an accommodation to be entitled to one, because many employees do not know their rights and that should not effect their entitlements under the law.

Additionally, if an employee requests an accommodation for their disability, the employer must work with the employee to either find a reasonable accommodation or determine that no such accommodation exists.

The employer cannot simply ignore the employee or deny the request because the accommodation requested is not feasible. For example, if an employee requests to telecommute and work from home as an accommodation, but the employer legitimately needs them in the office, then even though the requested accommodation might not be "reasonable," the employer is now under a duty to see if there is some other accommodation both sides can agree upon. If the employer simply says "no" and leaves it at that, then a violation has occurred.

California Takes this One Step Further

In California, if the employer refuses to engage in this "interactive process," the employee can sue based on this violation alone. This was the case in Wysinger v. Automobile Club of Southern California (Cal.App.Dist. 2 11/9/2007) No. B191028.

In Wysinger, the jury determined that (1) the employer failed to engage in the required interactive process, but also that (2) the employer did not fail to accommodate the employee's disability because no such accommodation was available. The employer appealed the decision, arguing that these two verdicts were inconsistent, because they were held liable for not working with the employee to agree on an accommodation that did not even exist.

However, the court upheld the award to the employee of over $2 Million, because the employer's failure to even respond to the employee's accommodation requests is a completely separate question and independent from whether an accommodation actually existed or was denied.

Employees must realize that they have a right to a reasonable accommodation for their disabilities at work and employers have to realize that they have to at least try to explore possible reasonable accommodations with an employee who is disabled.

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...