San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

Gary Ross, the military veteran who urged his employer to accommodate his medical use of marijuana, has failed to convince the Supreme Court of California to revive his case.  On January 24, 2008, the Court affirmed (5 - 2) the trial and appellate court decisions that RagingWire Telecommunications was not required to employ Ross, who tested positive for marijuana, even though his use of the drug has been decriminalized under California’s Compassionate Use Act.

As discussed in an earlier posting, Ross argued that his former employer, RagingWire, had discriminated against him under the California Fair Employment and Housing Act by terminating him because of his positive drug test which resulted form his use of marijuana for his disability.  He also alleged that he had been wrongfully discharged as a matter of public policy.  Yesterday’s decision rejects Ross’s disability discrimination claim for one simple reason:  The Compassionate Use Act provides only that individuals who use marijuana pursuant to a recommendation from a health care provider have a defense to criminal prosecution.  Noting that California voters cannot obscure federal laws which state that the drug poses a risk of abuse, the Court concluded that the Compassionate Use Act simply fails to address the rights of employers and employees.  The Court further observed that any effort to enact such a law would likely generate significant controversy, and it declined to read such a requirement into the limited protections of the statute.

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On November 6, 2007, the California Supreme Court heard long-awaited arguments in the closely watched "medical marijuana" case of Ross v. RagingWire Telecommunications, Inc.  Gary Ross, a network administrator, was terminated eight days into his employment after testing positive for marijuana.  Ross challenged the termination because he had a doctor's recommendation that he use marijuana to relieve chronic back pain.  Ross has alleged that because his use of marijuana was lawful under California's Compassionate Use law, his employer was obligated under state law to accommodate his disability by permitting him to use marijuana as recommended by his physician.  Ross’s attorneys also argued that his discharge violated California's public policy, including California’s constitutionally created right to privacy.

Marijuana use is illegal under federal law.  California has effectively “decriminalized” marijuana use by adopting the Compassionate Use Act of 1996.  The Act allows individuals to purchase, possess, cultivate, and use small quantities of marijuana for medicinal purposes without fear of prosecution by state officials.  Federal officials may prosecute those who use marijuana pursuant to the state law, but as a practical matter, enforcement efforts are much more likely to be focused on cultivation and distribution networks.  The statutory language makes it clear that employees may not possess or use marijuana at work – leading Ross’s attorneys to argue that by implication, the law intended that employees be permitted to use the drug outside of work.

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