California Employers No Longer Holding Their Breath: Applicants Using Medical Marijuana May Be Denied Employment

Must a California employer hire a job applicant who tests positive on a pre-hire drug test, but claims to be using marijuana for "medical reasons?" - " No," according to the California Supreme Court. On January 24, 2008, the court held that employers may decline to hire applicants who use marijuana in violation of federal law, even if that use would not be a violation of state criminal law. The court declared: "Nothing in the text or history of the Compassionate Use Act [Cal. Health & Safety Code 11362.5] suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions." The decision, Ross v. Ragingwire Telecommunications, Inc., No. S138130 (Jan. 24, 2007), is noteworthy for all employers who conduct, or are considering conducting, preemployment drug tests.

Setting For The Case

Ross was decided on the pleadings. The only facts in the case were taken from the plaintiff's lawsuit itself, not from any evidentiary submissions by the parties. For purposes of its ruling, the court assumed the truth of all of the plaintiff's factual allegations. According to the plaintiff's complaint, he suffered from a serious back impairment and used marijuana for pain relief. The plaintiff's doctor recommended the use of marijuana, pursuant to California's Compassionate Use Act.

The employer made a conditional job offer to the plaintiff. Before taking the requisite preemployment drug test, the plaintiff furnished the testing clinic with a copy of his physician's written recommendation for medical marijuana. The plaintiff then submitted to the test and started working before the clinic conveyed the test results to the employer. He tested positive for Tetrahydrocannabinol ("THC"), the main chemical found in marijuana. Upon learning of the positive test result, the employer discharged the plaintiff for testing positive, even though he apprised the employer of his doctor's recommendation.

The plaintiff filed a lawsuit asserting disability discrimination and wrongful termination. The plaintiff alleged that the employer's decision to fire him because he used marijuana, and its failure to provide him with "reasonable accommodation," discriminated against him on the basis of his "disability" and constituted wrongful termination in violation of public policy. The plaintiff...