Under California law, it has been well established that an employee who uses medical marijuana is not protected under the Fair Employment and Housing Act (FEHA). Because there is no legal protection for the use of medical marijuana at work, employees may not report to work under the influence of marijuana, nor use the substance during working hours, even if such use is “prescribed” by a medical marijuana prescription.
The Ninth Circuit Court of Appeals reached a similar conclusion, holding that the Federal Americans with Disabilities Act (ADA) does not protect current medical marijuana use. (James v. City of Costa Mesa.)
ADA Protection:
The ADA provides protection for disabled individuals from discriminatory practices. However, the ADA excludes individuals who are currently using illegal drugs from the definition of “disability”
and also from protection.
Federal law classifies any marijuana use as “illegal” under the federal Controlled Substances Act.
The Ninth Circuit ruled that because federal law does not authorize marijuana use, current users are not entitled to the protection from discrimination under the ADA.
The Court specifically stated that doctor prescribed marijuana use, while permitted by state law, is prohibited by federal law, and is considered an illegal use of drugs for purposes of the ADA. An employee who uses medical marijuana is not entitled to protection as such use brings them within the ADA’s illegal drug exclusion and does not provide protection.
Same Result Under California Law:
In 2008, the same issue came before the California Supreme Court which ruled that an employer may refuse to hire or terminate an individual who tests positive for marijuana use, even if the individual has a physician’s prescription for the usage. (Ross v. RagingWire Telecommunications Inc).
The Supreme Court noted that the State’s Compassionate Use Act did not give marijuana the same status as other legally prescribed drugs: “No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law.” Instead, the state law exempts medical marijuana users from criminal prosecution.
The Court found that nothing in the state law was intended to impact employer rights and does not require employers to accommodate the use of marijuana by waiving their policy for testing for illegal drug use.
What Should I Do?
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Establish a pre-hire/post-offer testing process where applicants are tested for illegal drug use;
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Provide advance notice to applicants and draft clear policies to minimize expectations of privacy;
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Make sure that any testing process you use is reliable and takes measures to safeguard privacy;
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Remember: Random drug testing of employees can constitute an invasion of privacy except in certain safety-sensitive positions and is generally NOT permitted.