No Duty to Reasonably Accommodate Employees for Medical Marijuana Use

By: Kyle D. Kring and Grace Pak

The increased decriminalization of marijuana use raises questions of whether employers are required to reasonably accommodate employees who use it for medical reasons, and whether they can terminate the employee for failing a drug test. As prudent employers, it is always a good idea to contemplate how the change in law will affect the workplace. Although sixteen states have legalized medical marijuana, along with two states that legalized recreational use, marijuana is nonetheless an illegal drug under federal law. Consequently, employers are not required to accommodate the use of marijuana, especially during work hours or on the employer's property.

In California, an employee may argue that it is unlawful for an employer to refuse to employ or discharge a person from employment because of a physical disability or medical condition, and that an employer is required to engage in a good faith interactive process to determine reasonable accommodations for disabled employees under the California Fair Employment and Housing Act (FEHA). Furthermore, an employee is likely to claim that FEHA works together with the California Compassionate Use Act (Proposition 215) to shield him/her from discrimination in the work place.

However, the California Supreme Court in Ross v. Raging Wire (2008) 42 Cal.4th 920 held that FEHA does not require employers to accommodate the use of marijuana and that the Compassionate Use Act does not apply in the employment context. The employee in Ross was prescribed medical marijuana because he suffered from strain and muscle spasms as a result of injuries. When the employee was offered a job, he was required to take a drug test which tested positive for tetrahydrocannabinol (THC). The employee had shown his physician's recommendation for marijuana and explained it was for medical purposes.

The Ross Court reasoned that the Compassionate Use Act was enacted in a narrow sense to protect physicians and users from criminal liability. The Court further reasoned that a state law cannot completely legalize marijuana for medical purposes because the drug remains illegal under federal law. As a result, an employer may terminate an employee for failing its drug test, even with a prescription for marijuana use.

The recurring theme in California and other states is, in the absence of laws that specifically allow the lawful use of marijuana in places of employment, employers are not required to accommodate an employee's use of marijuana during work hours or on work premises even with medical prescriptions. If an employer has a drug free workplace policy, hiring one person who has a prescription for medical marijuana and then denying another for the same type of position could open the employer for other discrimination-related litigation. It is always prudent to be consistent across the board for all hires.

Kyle D. Kring is a Managing Partner of Kring & Chung, LLP. He can be reached at (949)261-7700 or kkring@kringandchung.com. Grace Pak is a law clerk with Kring & Chung, LLP's Irvine office. She can be reached at (949)261-7700 or gpak@kringandchung.com.