California Supreme Court Considers Employer's Obligation to Accommodate Employee's Medical Marijuana Use

Date   Nov 15, 2007

On November 6, 2007, the California Supreme Court heard oral argument in the highly controversial case of Ross v. RagingWire.

On November 6, 2007, the California Supreme Court heard oral argument in the highly controversial case of Ross v. RagingWire. At issue in Ross is whether an employer must retain an employee who uses marijuana for medical reasons and, because of that use, fails a properly administered drug test.

In this case, Ross applied for a job with RagingWire and was hired contingent upon passing the company’s mandatory pre-employment drug test. When he was offered the job, Ross was using marijuana to alleviate chronic back pain, as permitted by California’s Compassionate Use Act of 1996. When his drug test came back positive for marijuana metabolites, Ross’ employment was terminated after eight days of employment.

Ross sued Raging Wire, claiming the company’s refusal to waive the mandatory drug test was a denial of a reasonable accommodation under the state Fair Employment and Housing Act. The trial court dismissed Ross’ complaint and the California Court of Appeal affirmed that dismissal.

The California Supreme Court agreed to review the case and held oral argument on November 6, 2007. Chief Justice Ronald George set the tone for the oral argument, calling California a “pioneer” and noting that the federal government is not a pioneer. Several themes recurred throughout the oral argument, including the fact that while the Compassionate Use Act permits the medical use of marijuana for treatment of various conditions, federal law prohibits the possession and use of marijuana. Hence, one question posed was whether California law should require an employer to employ a “lawbreaker?”

Indeed, much was made of the differences between California law and the federal law. In fact, one Justice focused on the practical issue – isn’t an employer entitled to ensure a consistent workforce, which could be jeopardized if an employee engaged in unlawful activity is arrested?

However, the majority of the argument focused on whether an employer is obligated to accommodate a disability by permitting conduct that is illegal under federal law. The parties acknowledged that no one claims Ross should be allowed to use marijuana on the worksite or during working hours. The Compassionate Use Act does not mention employers or the obligation of employers to accommodate the medical use of marijuana. Yet, the Fair Employment and Housing Act requires employers to reasonably accommodate disabilities, such as Ross’ chronic back pain.

It was noted that no one in this case is attempting to tell Ross that he cannot use medical marijuana to treat his disability; instead the issue is whether RagingWire must employ him. Thus, in some respects, the issue comes down to the employee’s choice – treat your disability or remain employed.

The Court is expected to issue a decision in the case by early February.

Employers’ Bottom Line:

Drug testing of employment applicants has become commonplace. While California law permits such testing, employers must meet certain requirements to comply with the law. Further, the decision in this case will be significant to California employers, as the compassionate use of marijuana becomes more prevalent. Indeed, if this case is reversed, employers will be required to put more safeguards into place to ensure that employees who claim to be using marijuana for medical purposes are, in fact, using it for lawful purposes.

Should you have any questions about this case, drug testing in the workplace, or any other employment law matters, please contact the Ford & Harrison attorney with whom you usually work or the author of this Alert, Helene Wasserman, at 213-237-2403 or

Helene is the host of the Employer Helpcast, which is a “one stop website” for both “nuts and bolts” employment law advice and insight into new legal developments affecting employers.