CASE SUMMARY:
Ross tested positive for marijuana use during a pre-employment drug screening, but the results did not arrive until after he started working as a lead systems administrator. He told his employer that his doctor had recommended marijuana use for chronic low back pain, but the board of directors met and decided to fire him anyway.

Ross sued for disability discrimination, arguing that allowing his medical marijuana use is a reasonable accommodation under FEHA. He said he never smoked marijuana at work.

The California Compassionate Use Act, approved by voters in 1996, removes criminal penalties for marijuana if recommended by a physician. Ross contended he was fired for used in effect, a "prescribed drug."

The Court concluded that he Compassionate Use Act only removes criminal penalties in California - it does not provide an employment right under FEHA if the use violates other laws.

"Plaintiff's position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug, but the act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law…. even for medical users."

In a published decision the California Supreme Court upheld two prior rulings that FEHA does not require that an employer reasonably accommodate the use of any drug, even for medical reasons, if it is illegal use under Federal law.

The Supreme Court rejected arguments that firing Ross for smoking marijuana was akin to firing him for using a prescribed drug.  The Court further stated that the burden of determining on a case-by-case basis whether drug use "impairs" performance in the workplace should not be placed on the employer.

WHAT WENT WRONG:

Employee assumed since marijuana was medical prescribed he had the right to use.

WHAT SHOULD HAVE BEEN DONE/LESSON LEARNED:

Research your rights as an employer before making any kind of decision.

RESULTS:

Case was dismissed.