California Employers Can Refuse To Employ Individuals Who Fail A Drug Test Due To "Medicinal Marijuana" Use

In an opinion issued last week, the California Court of Appeal held in Ross v. Ragingwire Telecommunications that an employer does not violate the Fair Employment and Housing Act (FEHA), or any fundamental public policy, by firing or refusing to hire a person who uses illegal drugs, including persons who are using marijuana at a physician’s recommendation for medical purposes.

California’s Compassionate Use Act of 1996 provides that certain state criminal statutes, which prohibit the possession and cultivation of marijuana, do not apply to patients and/or their caregivers who possess or cultivate marijuana for personal medical purposes with the approval of a physician. Other states have passed similar laws. After the law was passed, there was an open question as to whether employees were required to permit California applicants and employees to use marijuana under the Compassionate Use Act in order to comply with the FEHA, or whether they could defend an adverse employment action based on federal law which prohibits all marijuana use and possession. Earlier this year, the United States Supreme Court provided some guidance in Gonzales v. Raich, which held that the federal government had the power to prohibit the use of marijuana in California (and all other states), even if such use complied with the Compassionate Use Act or similar laws.

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