Schwarzenegger Vetoes Bill to Provide Employment Protections to Medical Marijuana Users

As expected, the California Legislature acted quickly to try to overturn the California Supreme Court’s decision affirming an employer’s termination of an employee who tested positive for (medicinal) marijuana. Assemblyman Mark Leno (D-S.F.) sponsored AB 2279 seeking to overturn Ross v. RagingWire Telecommunications, 42 Cal.4th 920 (2008). If the bill was successful, employers would have been generally prohibited from firing or discriminating against applicants or employees for their use of medical marijuana other than those in law enforcement or safety-related jobs. Leno’s bill was opposed by the California Chamber of Commerce, but it passed both houses on bare-majority, party-line votes.

However, Governor Arnold Schwarzenegger vetoed the bill last week. He indicated his concern that it interfered with employment decisions relating to marijuana use, particularly because employment protection was not a goal of the medical marijuana initiative California voters passed in 1996. Therefore, the RagingWire decision affirming an employer’s right to terminate an employee who tests positive for marijuana — even if the marijuana is medically prescribed — remains good law in California.

Historical Background

In a 5-2 decision issued January 24, 2008, the California Supreme Court held that the “Compassionate Use Act” does not require California employers to accommodate these employees by permitting their use of an illegal drug (marijuana), and that employees terminated for such use could not state claims for disability discrimination or wrongful termination under FEHA, California’s equivalent to the ADA. Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920 (2008).

The plaintiff in the underlying suit, Gary Ross, was a 45-year old former Air Force Aircraft mechanic who injured his back in a fall from the wing of an F-16 fighter jet in 1983. He claimed marijuana was the only treatment that gave him relief from the resulting chronic back pain. RagingWire offered to hire him, subject to a clean drug test. When his test came back positive for marijuana, RagingWire terminated him even though Ross presented its Human Resources personnel with his doctor’s recommendation to use marijuana and confirmed that he only used it during nonworking hours and off the company’s premises.

Ross filed suit claiming that, because it is lawful under California’s Compassionate Use Act (Cal. Health & Safety Code § 11362.5) to use marijuana medicinally, RagingWire had failed to reasonably accommodate his disability under FEHA and terminated him in violation of public policy. The Court disagreed, ruling that the Act merely provides a criminal defense in cases where a doctor recommends marijuana use for medical purposes. The drug remains illegal under federal law, and there is nothing in the Act that requires any reasonable accommodation or has any connection to employment.

The Ross case raised an issue many California employers may have confronted since passage of the Compassionate Use Act by voter initiative in 1996: whether the law overrides employers’ policies against drug use. Citing the narrow purpose behind the law identified in the Ballot Pamphlets supporting the original initiative, and the complete lack of connection to employment policies, the California Supreme Court held the Act does not override employers’ internal policies and that employers are therefore entitled to enforce such policies:

“Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.”

Disclaimer

This Advisory is published by Alston & Bird LLP to provide a summary of significant developments to our clients and friends. It is intended to be informational and does not constitute legal advice regarding any specific situation.