Medical Marijuana And The California Workplace

Medical Marijuana May Be Legal, But Workers Should Beware That Employment Protections May Not Extend To Marijuana Use In The Workplace

Update: Prop 19 was defeated in the 2010 election by a very narrow margin with just over 53 percent of California voters voting against the Regulate, Control & Tax Cannabis Act.

California will be casting votes on Proposition 19, which would legalize marijuana. If approved, local municipalities would be able to pass their own marijuana laws and collect taxes on sales. The measure is designed to help California raise additional revenue. The effect on California workers is still in question. Currently, medical marijuana is legal under California law. However, California has no rule in place which protects workers who have prescriptions for the drug. Workers who undergo drug tests and test positive for medical marijuana could still find themselves terminated for illegal drug use.

Even if Proposition 19 passes, marijuana would still be an illegal drug under federal law. The Controlled Substances Act lists marijuana as an illegal drug, even if used for medicinal purposes. For this reason, the Americans with Disabilities Act offers little to no protection to workers who are terminated. Some states have created specific provisions that address the issue, stating that employers cannot discriminate against employees who use medical marijuana. The law in California comes from the case Ross v. RagingWire Telecommunications, Inc.

Legal, but Illegal?

Gary Ross brought claims under the California Fair Employment and Housing Act (FEHA) and Compassionate Use Act (CUA), alleging that he was wrongfully terminated by his employer. When he showed up to take a drug test as a condition of his employment, he informed the testing facility that he had a prescription for medical marijuana. Ross tested positive for the drug, and was suspended and ultimately fired due to the positive test.

The court concluded that there was nothing present in California or federal law that would allow any employment protections for Ross. The CUA, which made medical marijuana legal, was held to apply to criminal law issues and not employment law. The employer was found not to be in violation of FEHA, which calls for employers to reasonably accommodate employees with disabilities. Based on this ruling, legislators attempted to amend the CUA to prohibit employers from discriminating against those who use medical marijuana, but Governor Schwarzenegger vetoed the bill.

This is an area of law which is very much unsettled for employees. Other lawsuits have alleged that employers were violating the Americans with Disabilities Act by not providing reasonable accommodations because of medical marijuana use. These cases have been unsuccessful, again due to the marijuana's classification as an illegal drug under the Controlled Substances Act.

California employers are allowed to test employees for illegal drugs as part of a screening process before hiring. For existing employees, there must be a connection between job functions and potential harm that could arise to allow drug testing. Any drug tests of current employees must balance the employee's privacy interests versus the safety interests of the employer. For more information about medical marijuana laws in the workplace, contact an experienced attorney in your area.