Employee's Job Goes Up In Smoke

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Even in California, a disabled employee may not sue his employer for disability discrimination when fired for his use of medical marijuana - marijuana that is allegedly used for medicinal purposes.

Even in California a disabled employee may not sue his employer for disability discrimination when fired for his use of medical marijuana (marijuana which is allegedly used for medicinal purposes pursuant to a doctor's written authorization, as per the provisions of California's Proposition 215).

The Lawsuit: The employee, Gary Ross, suffered from chronic back pain as a result of injuries that he sustained in the U.S. Air Force. Because of his condition, Ross was a qualified individual with a disability under California's Fair Employment and Housing Act (FEHA) and received disability benefits. In 1999, Ross began using marijuana to relieve his chronic back pain, pursuant to his doctor's written recommendations, consistent with the provisions of California's "Compassionate Use Act of 1996" (CA. Prop. 215). In 2001, an employer, Raging Wire Telecommunications, Inc., offered Ross a job as a lead systems administrator. Raging Wire required a drug test. Ross gave the clinic that administered the test a copy of his physician's written recommendation for the use of marijuana. Raging Wire fired Ross after the test results came back positive, despite Ross's claim that his use of marijuana to treat his pain did not affect his ability to do the essential functions of his job. Ross sued Raging Wire for disability discrimination and for wrongful termination in violation of public policy.

The California Supreme Court Rules for the Employer: As part of its ruling, the California Supreme Court noted that marijuana is still illegal under Federal Law and that Raging Wire acted consistent with its written employment policies, which deny employment to persons who test positive for illegal drugs. The California Supreme Court ruled that the FEHA does not require employers to accommodate the use of illegal drugs and affirmed the lower Court's decision to sustain Raging Wire's Demurrer to Ross's Complaint, without leave to amend, entering judgment in favor of Raging Wire. (Case Citation: Ross v. RagingWire Telecommunications, Inc. (January, 2008) 42 Cal. 4th 920; 174 P.3d 200).

Observations: While this ruling is clearly a WIN for California employers, it is limited in its scope to the use of illegal drugs by employees, as opposed to the employee's use of prescription medications which are lawfully obtained. In addition, the employer's stated policies, denying employment to persons who use illegal drugs, also assisted this employer in its defense. Generally speaking, it is important to remember that qualified, disabled individuals may require reasonable accommodation by the employer. California employers must engage in the interactive process to determine the nature and extent of any reasonable accommodation that may be required.

CE Smith Law Firm is the small employer's resource in California, educating and empowering its clients to effectively manage their employees, insuring that its clients remain labor law compliant and serving as its clients' advocate, to advance and protect their interests. For further information, please contact:

Attorney, Clifton E. Smith, SPHR
CE Smith Law Firm
(760) 724-7256
http://www.CESmithLaborLaw.com

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