Medical Marijuana Use In the Workplace, Quirky Question # 21 (California Issue)

Quirky Question # 21:

We recently made a job offer to a gentleman as a lead systems administrator in the California division of our telecommunications company.  As part of our routine pre-employment drug testing, he tested positive for marijuana.  However, the applicant presented us with a doctor’s note allowing him to use “medical marijuana” for chronic back pain cause by injuries he suffered while on active duty in the Air Force.  He explained that he’s been using it for years, he only uses it at home, and it has never had a negative impact on his job performance.

It’s our company’s policy not to hire anyone who tests positive for illegal drug use.  But this is the first time we have been presented with a doctor’s note authorizing the marijuana use for medical reasons.  Are we going to be in trouble if we refuse to hire him?

Dorsey’s Analysis:

I suspect that those of you whose companies are located in, or do business in, California, recognize that these facts are drawn not from a client inquiry but instead from a very recent case from the California Supreme Court. In that case, Ross v. Ragingwire Telecommunications, Inc. (Cal. No. S138130, January 24, 2008), the state’s high court affirmed a bright line test that employers need not accommodate the use of illegal drugs.

The employee in the Ross case argued that his employer had to accommodate a person using marijuana under a doctor’s care based on a 1996 initiative passed by California voters called the Compassionate Use Act. Federal law prohibits the possession of marijuana, even by medical users. But the Compassionate Use Act gives a person in California who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges involving the drug. Mr. Ross argued that this meant his potential employer could not refuse to hire him based on the results of his pre-employment drug test.

The California Supreme Court disagreed. The Compassionate Use Act, the court said, does not address the rights and duties of employers and employees. And, the California Fair Employment and Housing Act (which prohibits discrimination on the basis of a disability as well as other protected categories) permits an employer to condition an offer of employment on the results of a medical examination, and to deny employment to applicants who test positive for illegal drugs. Therefore, there was no basis for Mr. Ross’ claim of disability discrimination.

The ruling is important to employers for several reasons. The opinion affirms that an employer may condition an offer of employment on the results of a medical exam. Medical exams may be required by an employer after an offer of employment is made but before the employee begins work to ensure that the applicant can perform the essential functions of the job. This means that the medical exam must be job related. But the court said that the employer had a legitimate interest in avoiding well-documented problems associated with the abuse of drugs and alcohol by employees – increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover. This was true even though Mr. Ross would not have had responsibilities for driving a company vehicle or operating potentially dangerous machinery.

Notwithstanding this decision, as is always the case, if an employer is going to require conditional medical exams and reject applicants who test positive for illegal drug use, it is important to apply the rule fairly and across the board. Treating applicants differently without a legitimate and well-articulated business reason for doing so can lead to claims of differential treatment and discrimination. In addition, the tests should be administered to preserve the applicant’s right to privacy under the California Constitution. Finally, remember that the Ross case involved the current use of an illegal drug. A past addiction or alcoholism may be a covered disability that cannot be the basis for an adverse employment action and may require a reasonable accommodation (e.g., a modified schedule to allow the employee to attend Alcoholic Anonymous meetings).

Unfortunately, even though Ross was an opinion of the California Supreme Court, the issue of accommodating medical marijuana use in the workplace is not necessarily settled. The dissent argued that the result was anything but compassionate and will unfairly force employees to choose between medical treatment for serious illnesses and unemployment, or continuing employment and chronic pain. At least one state legislator has said he plans to introduce legislation to protect medical marijuana users’ right to employment. Stay tuned.

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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