Helene Wasserman | 310- 772-7288 | HWasserman@littler.com
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California Supreme Court Hears Oral Argument In Case Addressing Employer’s Obligation to Accommodate Employee Engaged in Compassionate Use of Marijuana
On November 6, 2007, the California Supreme Court heard oral argument in the highly-controversial case of Ross v. RagingWire. At issue in Ross is whether an employer must retain as an employee an individual who fails a properly-administered drug test due to the compassionate use of medical marijuana.
Ross applied for work as an information technology professional with RagingWire. As part of the hiring process, RagingWire requires all employees to undergo a pre-employment drug test. Ross agreed to accept an employment offer with RagingWire, which was contingent upon him passing the mandatory drug test. He did so even though he was using marijuana under California’s Compassionate Use Act of 1996 to alleviate chronic back pain. When his drug test came back positive for marijuana metabolites, Ross’ employment was terminated after eight days on the job.
The trial court dismissed Ross’ complaint, and the California Court of Appeal affirmed that dismissal.
By calling California a “pioneer” and noting that the federal government is “not” a pioneer, Chief Justice Ronald George set the tone for the November 6 Supreme Court oral argument. There were several themes that recurred throughout the oral argument. Several of the justices noted that, while the Compassionate Use Act does permit the medical use of marijuana for treatment of various conditions, including chronic pain, federal law still provides that the possession and use of marijuana are illegal. Hence, one question posed was whether California law should require an employer to employ a “lawbreaker?”
Indeed, much was made of the differences between California law and the federal law. In fact, one Justice focused on the practical issue - isn’t an employer entitled to ensure a consistent workforce, which could be jeopardized if an employee engaged in unlawful activity is arrested?
However, the majority of the argument focused on whether an employer is required to accommodate a disability, where the accommodation is conduct that is illegal under federal law. It was noted that no one is arguing that Ross should be allowed to use marijuana on the worksite or during working hours. The Compassionate Use Act makes absolutely no mention of employers, or the obligation of employers to accommodate the medical use of marijuana. Yet, the Fair Employment and Housing Act requires employers to reasonably accommodate disabilities, such as Ross’ chronic back pain.
While it was noted that no one is attempting to tell Ross that he cannot use medical marijuana to treat his disability, the issue at hand was whether RagingWire was required to employ him. In some respects, the issue comes down to a choice of the employee - treat your disability or have a job.
The decision is due by early February.
Drug testing of employment applicants has become commonplace. While California law does permit such testing, there are certain requirements that employers must meet in order to comply with the law. Further, the decision in this case will be quite telling and important to California employers, as the compassionate use of marijuana becomes more prevalent. Indeed, if this case is reversed, there will be more safeguards that employers must put into place to ensure that employees who claim to be using marijuana for medical purposes are, in fact, using it for lawful purposes.
On November 6, 2007, the California Supreme Court heard oral argument in the highly-controversial case of Ross v. RagingWire. At issue in Ross is whether an employer must retain as an employee an individual who fails a properly-administered drug test due to the compassionate use of medical marijuana.
Ross applied for work as an information technology professional with RagingWire. As part of the hiring process, RagingWire requires all employees to undergo a pre-employment drug test. Ross agreed to accept an employment offer with RagingWire, which was contingent upon him passing the mandatory drug test. He did so even though he was using marijuana under California’s Compassionate Use Act of 1996 to alleviate chronic back pain. When his drug test came back positive for marijuana metabolites, Ross’ employment was terminated after eight days on the job.
The trial court dismissed Ross’ complaint, and the California Court of Appeal affirmed that dismissal.
By calling California a “pioneer” and noting that the federal government is “not” a pioneer, Chief Justice Ronald George set the tone for the November 6 Supreme Court oral argument. There were several themes that recurred throughout the oral argument. Several of the justices noted that, while the Compassionate Use Act does permit the medical use of marijuana for treatment of various conditions, including chronic pain, federal law still provides that the possession and use of marijuana are illegal. Hence, one question posed was whether California law should require an employer to employ a “lawbreaker?”
Indeed, much was made of the differences between California law and the federal law. In fact, one Justice focused on the practical issue - isn’t an employer entitled to ensure a consistent workforce, which could be jeopardized if an employee engaged in unlawful activity is arrested?
However, the majority of the argument focused on whether an employer is required to accommodate a disability, where the accommodation is conduct that is illegal under federal law. It was noted that no one is arguing that Ross should be allowed to use marijuana on the worksite or during working hours. The Compassionate Use Act makes absolutely no mention of employers, or the obligation of employers to accommodate the medical use of marijuana. Yet, the Fair Employment and Housing Act requires employers to reasonably accommodate disabilities, such as Ross’ chronic back pain.
While it was noted that no one is attempting to tell Ross that he cannot use medical marijuana to treat his disability, the issue at hand was whether RagingWire was required to employ him. In some respects, the issue comes down to a choice of the employee - treat your disability or have a job.
The decision is due by early February.
Drug testing of employment applicants has become commonplace. While California law does permit such testing, there are certain requirements that employers must meet in order to comply with the law. Further, the decision in this case will be quite telling and important to California employers, as the compassionate use of marijuana becomes more prevalent. Indeed, if this case is reversed, there will be more safeguards that employers must put into place to ensure that employees who claim to be using marijuana for medical purposes are, in fact, using it for lawful purposes.