Q: I have a California recommendation for medical cannabis, but I’m afraid that if I use marijuana, my employer may fire me for testing positive for THC while on the job. Am I allowed to use marijuana on the job in California?
A: There is no easy answer to this question, and unfortunately, California State law has not yet recognized the rights of patients to be free from discrimination in the workplace. The Compassionate Use Act of 1996, while stating that patients and primary caregivers should remain free from criminal sanctions for the cultivation, use and transportation of marijuana, nowhere does the statute contain any reference to the civil rights patients and caregivers might have with respect to discrimination. Neither did the Medical Marijuana Plan (Senate Bill 420) make any further reference or clarification in regards to the rights of users of medical cannabis which were not criminal in nature.
The prevailing case on point is Ross v. RagingWire Telecommunications (2008) 42 Cal.4th 920. There, Gary Ross suffered injuries to his back while acting as a member of the United States Air Force, and began using medical cannabis in 1999 to treat the pain from this injury. He was hired by RagingWire in 2001, but within a week, tested positive for tetrahydrocannabinol (THC) for a test taken on the job (even though Ross only smoked off the job, the THC remained in his system long enough to show up on a test taken at work). RagingWire then terminated Ross’ employment because of the marijuana usage. Ross sued RagingWire alleging discrimination under the Fair Employment Housing Act (FEHA), and wrongful termination in violation of public policy. The trial court granted RagingWire’s demurrer (a type of motion to dismiss), and the appellate court affirmed.
A majority of the California Supreme Court agreed. While Ross argued that the Compassionate Use Act legalized his conduct, the opinion noted that nothing in the Compassionate Use Act showed any intent of the voters passing Proposition 215 to address the specific rights and remedies of employers and employees regarding medical marijuana. The Court read the law narrowly, stating:
In conclusion, given the Compassionate Use Act’s modest objectives and the manner in which it was presented to the voters for adoption, we have no reason to conclude the voters intended to speak so broadly, and in a context so far removed from the criminal law, as to require employers to accommodate marijuana use.
Further, the Court found, for similar reasons, that a termination of an employee for using medical marijuana did not violate public policy. Since the Compassionate Use Act made no express statement or intent to forge a policy in favor of employee rights to use medical marijuana, the Court did not find that such a termination as a result of marijuana usage violated the policies of the law. As long as the narrow principles of decriminalizing marijuana were served, the Court claimed it had no providence to interpret the law to protect an employee from being fired for using medical cannabis, even pursuant to a lawful recommendation.
Some organizations such as Americans for Safe Access to Marijuana (ASA) are currently working on proposals for the California legislature to review in order to better protect the civil rights of patients and caregivers under California law. Visit their website to follow developments in medical marijuana laws across the nation, including access to a wealth of useful legal information, blogs, articles and other services.
Even though the Compassionate Use Act alone may not protect a patient from retaliation by their employer for using medical marijuana, there still may be other grounds to state a claim for wrongful termination depending upon the facts and circumstances of your case. You should contact an attorney to determine your rights and remedies.
Beck Law P.C. offers an entire scope of California Medical Marijuana services to medical marijuana clients in Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, Kelseyville and throughout Sonoma, Mendocino and Lake County.
Beck Law P.C. can furnish the experience and knowledge to help guide you through the legal aspects of your current situation, needs or plans. Making an appointment to meet with us is an investment in exploring what options may or may not apply to your particular situation. Your visit to the Beck Law Offices is confidential, as is the information discussed. You can contact our office at 707-576-7175 or contact us online.
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