OCTOBER 2005

II. JUDICIAL UPDATE

Court Approves Discharge of Legal Marijuana User

In Ross v. Ragingwire Telecommunications, Inc., a California court of appeal held that employers have the right to enforce a drug-free workplace policy, even though medical marijuana use is permitted under California’s Compassionate Use Act of 1996. Gary Ross (the “Employee”) used marijuana for chronic back pain pursuant to his doctor’s recommendation and in accordance with the Compassionate Use Act of 1996. When his employer, Ragingwire Telecommunications, Inc. (“the Employer”), received the results of a pre-employment drug test after eight days of employment, the Employee was discharged.

The Employee sued for wrongful termination, disability discrimination pursuant to the FEHA, and breach of implied contract. The trial court dismissed the suit in its entirety because marijuana use violates federal criminal law. The court of appeal affirmed the lower court’s finding and stated that the Employer’s action was justified even if the Employee’s conduct was permitted under the Compassionate Use Act of 1996.

The court of appeal further opined that employers maintain a legitimate business interest in not employing persons who use illegal drugs. The FEHA does not prevent an employer from firing, or refusing to hire, a person who uses an illegal drug, even if state law makes that use lawful for medicinal purposes. The court invited the state Legislature or the electorate to determine, through the passage of new legislation, whether to protect medicinal drug use.

If you would like to discuss these or any other employment law matters, please do not hesitate to contact any member of Klinedinst's Employment Law Department.