One of our current employees has referred a friend for employment under our employee referral program, which rewards employees who refer applicants if we end up hiring them. The employee mentioned that the friend uses marijuana for medical purposes. I don’t really want to consider this person because we are a drug-free workplace, but I’m wondering if I have to because she’s disabled or I’d be discriminating somehow if I don’t. Meanwhile, the employee who referred her is hot to get her hired so she can get the referral bonus. (It’s a significant bonus.) What are my responsibilities/liabilities in this situation? — Samantha, HR Director in Orcutt
Assuming that you cannot wait for the court to render its decision, you should treat this candidate as you would any other applicant—don’t take her disability into account and decide whether to hire her based only on legitimate business reasons, i.e., the candidate’s qualifications or lack thereof. You should invite the candidate to apply. (Rejecting the candidate out of hand creates the risk of a lawsuit alleging that her disability was an unlawful factor in the decision to turn her away.)
If the candidate applies, you should not ask questions about the disability during the preemployment phase. If the applicant volunteers that she is disabled and requests an accommodation for the medicinal use of marijuana at work, at present, you may lawfully deny the request and notify the candidate about the drug-free policy. Recognize, however, that the court could rule to the contrary in the near future.
By way of background, in 1996, California enacted the Compassionate Use Act, which provides that certain state criminal statutes prohibiting the possession and cultivation of marijuana will not apply to a patient who, on the written or oral recommendation or approval of a physician, possesses or cultivates marijuana for personal medicinal purposes. However, under federal law, the possession or cultivation of marijuana remains a criminal offense and there is no medicinal-necessity defense to a federal prosecution. Further, the Compassionate Use Act did not amend California’s disability discrimination law (the Fair Employment and Housing Act or “FEHA”) to require an employer to accommodate a disabled employee or applicant’s use of medical marijuana.
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In the Ross v. Ragingwire case, the applicant obtained a physician’s recommendation to use marijuana for chronic back pain. He applied for employment, and the employer’s job offer was conditioned on passing a preemployment drug test. The applicant failed the test, testing positive for marijuana. The employer revoked the offer and terminated his employment. The applicant sued, alleging disability discrimination in violation of FEHA and wrongful discharge in violation of public policy.
The court of appeal assumed for purposes of deciding the case that Mr. Ross was disabled and the Compassion- ate Use Act made his use of marijuana legal under California law. However, because such use remained a violation of federal law, the court held that an employer may lawfully refuse to hire or discharge a person whose drug test reveals that he or she is using marijuana. The court opined that while employers may voluntarily decide to employ such an individual, the court cannot compel employers to do so unless and until the Legislature or the voters amend FEHA to compel employers to accommodate an employee’s medicinal use of marijuana.
Pending the California Supreme Court’s ruling on this case, I suggest that you invite the individual to apply, just like any other candidate an employee refers. If the person advances to the interview stage, HR should not disclose to the interviewer that the applicant is disabled or using medicinal marijuana. (Although the referring employee has brought this issue to your attention, remember that the information was not volunteered by the candidate). The interviewer should not ask questions intended to elicit information about the candidate’s disability.
Assuming the applicant reaches the offer stage, if you test applicants for drugs, you may test this candidate as well. If at any stage the applicant reveals her use of marijuana, you may reject the candidate, relying on the Ross v. Ragingwire decision. (Be mindful, however, that the Supreme Court may soon decide otherwise.)
Although this remains a judgment call, except by way of an applicant drug screen, I suggest that you not inquire about the candidate’s medicinal use of marijuana. Rather, questions should be limited to whether the applicant will be able to perform the essential job functions. You may notify the candidate about the company’s drug-free policy. You may also inquire whether the applicant has any criminal convictions.
If you hire the candidate and the employee requests a disability accommodation, you should not have to accommodate her marijuana use on the job and should not have to allow the employee to work under the influence. An employer may lawfully prohibit drug use, even doctor-recommended medication, on the job that would affect the employee’s ability to perform or endanger health or safety. This would especially be the case if the employee works in a safety-sensitive position, such as driving a forklift.
In sum, at the present time, an employer may lawfully reject an applicant for admitted medicinal use of marijuana. However, stay tuned for the Supreme Court’s decision on this issue in the near future.
Allen M. Kato is an associate at the San Francisco office of law firm Fenwick & West.