Fenwick Employment Brief - February 8, 2008
Employers Need Not Accommodate Employees Who Use Medical Marijuana
In a significant ruling for employers, the California Supreme Court recently held that an employer is not required to accommodate an employee who uses medical marijuana. In Ross v. Ragingwire Telecommunications, Ross used medical marijuana to treat his chronic pain at the suggestion of his physician. He applied to work for Ragingwire and received an offer as a systems administrator, subject to a drug test. Ross informed the clinic performing his drug test that he was using medical marijuana, and he gave the clinic a copy of his doctor's recommendation to that effect. After the results of his drug test came back positive, Ragingwire terminated Ross's employment. Ross sued, claiming that Ragingwire had violated the California Fair Employment and Housing Act ("FEHA") by failing to make a reasonable accommodation for his disability (and also thereby violating public policy).
The Supreme Court rejected Ross's claims, holding that the Compassionate Use Act of 1996 did not give medical marijuana users protection under FEHA. Emphasizing that marijuana is still illegal under federal lawóeven when used for medicinal purposesó the Court wrote, "FEHA does not require employers to accommodate the use of illegal drugs." The Court took particular note of the potential for abuse of marijuana and the employer's legitimate interest in whether an employee uses the drug. The Court also rejected Ross's argument that he was terminated in violation of public policy because there is no public policy in the employment context protecting his right to use medical marijuana.
The Court's opinion in Ross is significant because, until now, employers faced grave uncertainty with the question of how to treat disabled employees who use medical marijuana. While the legislature may change the Compassionate Use Act in the future to apply explicitly to the employment context, employers need not tolerate use of illegal substances by their employees and may continue the even-handed application of anti-drug policies.
Unnecessarily Broad Background Checks Halted As An Invasion Of Privacy
The federal Ninth Circuit Court of Appeals (San Francisco) has ruled that the government may not conduct broad background checks of low-level contract workers who do not work with classified material. In Nelson v. Nat.'l Aeronautics & Space Admin., NASA sought to conduct sweeping background checks on low-level contract...
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