The California Supreme Court has held that employers may terminate employees who test positive for marijuana use even if such use is prescribed by a physician to treat chronic pain. The Court held in Ross v. RagingWire:
"We conclude that the lower courts were correct: 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 preemployment drug tests and take illegal drug use into consideration in making employment decisions. We thus affirm."
Ross had been terminated after his preemployment drug test revealed the presence of THC, though he had given the drug testing company and his employer a certification from his doctor that the marijuana was used to treat chronic back pain. California is one of thirteen enlightened states with a Compassionate Use Act which permits marijuana use for medical reasons. Some medical historians note that marijuana or cannabis has been used for medicinal purposes for over 4000 years and, prior to the introduction of aspirin in the mid- nineteenth century, was widely used to relieve pain.
Despite the clear views of the people of California in approving such legislation, the majority reasoned that the Act did not “eliminate marijuana’s potential for abuse or an employer’s legitimate interest in whether an employee uses the drug.”
The dissent recognized that the majority “disrespects the will of California’s voters” in failing to protect an employee’s off-duty use of marijuana where a doctor had recommended it. Termination of such an employee, according to the dissent, would be a violation of the California Fair Employment and Housing Act unless the employer could demonstrate that the off-duty use would impair the employer’s operations. The employer offered no such defense in this case.
Alan Milstein
