Medical Marijuana: How Does the New Supreme Court Ruling Affect California Employers?

I see there’s a new U.S. Supreme Court decision on medical marijuana. How does this affect me and my employees? I have an employee who uses medical marijuana to ease his glaucoma symptoms—is this still legal? — K.L. in Fresno

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Shawna Swanson of Fenwick & West helps us untangle the issues surrounding workplace marijuana use.

Almost a decade ago, California voters legalized the medical use of marijuana—and ever since, controversy has raged over the implications of this “compassionate use” law for the workplace. Now, the U.S. Supreme Court has ruled that the federal government can enforce its anti-drug use and possession law—the Controlled Substances Act—even in states in which medical marijuana use is legal.1 However, the high court’s decision stopped short of invalidating compassionate use laws in California and the nine other states that have them.

Even though California’s compassionate use law remains on the books, the Supreme Court’s ruling probably gives employers some additional leeway to prohibit medical marijuana use in some contexts. Also, it is important to note that regardless of whether someone falls within the protections of the state medical marijuana law, you do not have to permit ingestion of the drug in the workplace.

A California appeals court recently threw out a wrongful termination and disability discrimination lawsuit filed by a worker who was discharged after his preemployment drug test came back positive for marijuana—even though the employee had medical authorization to use marijuana for chronic back pain.2 The court noted that nothing in the state antibias law prohibits an employer from firing or refusing to hire a person who uses an illegal drug. And, because the possession and use of marijuana—including medical marijuana—remains illegal under federal law, a court has no authority to require an employer to accommodate an employee’s marijuana use, even if it is for medical purposes and is otherwise legal in California. The compassionate use law, said the court, simply permits a person to use marijuana for medicinal purposes in California without incurring state criminal law sanctions—but the law says nothing about protecting the employment rights of those who do so.

Here’s a look at some key issues employers must be aware of:

1. Confirming legal use. California law allows the use of marijuana if it is “recommended,” verbally or in writing, by a physician. Some individuals also carry medical marijuana identification cards issued by the State Department of Health Services.

    

   If you believe an employee has come to work under the influence of marijuana, or an employee has asked for an accommodation with respect to medical marijuana use (see below), Swanson says that you can ask for written verification of a doctor’s recommendation. If the employee can’t provide verification, treat the case as you would any other involving an employee who is under the influence of an illegal drug in violation of your policies. Also, to avoid medical privacy issues, you should never ask why someone has been prescribed a medication, including marijuana.

2. Impact on worker performance. Suppose that an employee’s use of medical marijuana is affecting performance or attendance. Your best approach is to treat marijuana as a legal prescription drug—you should evaluate the situation and make decisions just as you would for any employee whose performance is affected by a prescribed medication. Don’t focus on the drug, but on the worker’s performance, and be sure to document performance deficiencies and your efforts to resolve them.

Note that if a job involves potential danger to the employee or others, such as driving a motor vehicle or operating machinery, or if you’re under contract with the federal government, Swanson says you should not allow the worker to continue in the position while under the influence of medical marijuana.

3. Reasonable accommodation. Despite the recent appellate court ruling discussed above, you may still be required to offer a reasonable accommodation for a disabled worker who is using medical marijuana. This could include time off for the worker to adjust to other pain control medication, or time off for drug rehabilitation. Note that you don’t have to approve an accommodation unless the worker is using marijuana for a disability. Plus, you only have to provide an accommodation that doesn’t cause you undue hardship, and the accommodation must enable the employee to perform the essential job functions.
4. Drug policies. Your drug and alcohol policies should contain language that provides an exception for legal drug use, as well as requires employees to notify you of any work-related restrictions in connection with the use of any substance—prescribed or not—that could potentially impair their ability to work or that could cause a positive drug test result. Your policy should state that failing to disclose such information is cause for discipline or termination.

   Also, bear in mind that transportation workers—such as truckers, airline pilots, railroad workers, and bus drivers—are subject to special federal drug-testing rules. Because marijuana use is illegal under federal law, the new ruling makes it clear that you can discipline or terminate one of these employees for being under the influence or having medical marijuana in his or her system, regardless of whether performance is affected. Also, some federal agencies that contract with private employers require that they comply with federal drug-free workplace policies, which would preclude all marijuana use.

¹ Gonzales v. Raich, U.S. Supreme Court No. 03-1454, 2005
² Ross v. Ragingwire Telecommunications Inc., Calif. Court of Appeals (3rd Dist.) No. C043392, 2005

Shawna Swanson is a partner at the San Francisco office of law firm Fenwick & West.