Employers And Medical Marijuana: Are California's Anti-Drug Policies Up In Smoke?

What's an employer to do when faced with employees using marijuana in or out of the workplace? How should employers respond to employees who use or possess marijuana legally under California law? How does such use or possession affect termination, disability and drug testing issues?

As of October 2015, 23 states, including California and the District of Columbia, have legalized marijuana for medical use and four states have legalized marijuana for recreational use. See California Health & Safety Code § 11362.5 ( the Compassionate Use Act of 1996). Despite state law trends to decriminalize marijuana use and possession, however, marijuana remains a Schedule 1 drug, i.e., a narcotic, under the Federal Controlled Substance Act (21 U.S.C. § 801-971). Possession of marijuana, therefore, even by medical users, is unlawful under Federal law. See 21 U.S.C. §§ 812, 844(a).

To date, California courts, relying on federal law, have upheld the termination of employees using marijuana legally under California law.

In Ross v. Raging Wire Telecommunications, 42 Cal.4th 920, 70 Cal.Rptr.3d 382, 174 P.3d 200 (2008), an employer discharged an employee for failing a drug test. The employee sued for wrongful termination, discrimination and breach of contract, alleging that he had a prescription to use marijuana for chronic back pain under the Compassionate Use Act.

The California Supreme Court upheld the termination, holding that the Compassionate Use Act "does not eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug." Noting that marijuana remains illegal under federal law, the court stated that employers are not required to accommodate marijuana use, even where the employee uses marijuana at home. Accordingly, the California Supreme Court held that the plaintiff could not state a cause of action under the Fair Employment and Housing Act, Government Code § 12940 (FEHA), based on the employer's refusal to accommodate the employee's use of marijuana for medical purposes or for wrongful termination of employment in violation of public policy.

Similarly, in James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), the Ninth Circuit Court of Appeals ruled that although medical...