The California Supreme Court's Decision on Whether an Employee Can Be Fired For Testing Positive for Off-the-Job, Doctor-Suggested Medical Use of Marijuana

By VIKRAM DAVID AMAR

Friday, Feb. 01, 2008

Last week, the California Supreme Court handed down an interesting and significant decision involving medical marijuana, employment law and federalism. The ruling, in Ross v. Ragingwire, is important for what it reveals about judicial attitudes in California, and because the issues it raises may recur in some of the dozen or so other states that have recognized medical marijuana rights under state statutes or court rulings.

Specifically, the decision addressed whether employers can, under California employment law, fire (or decline to hire) employees who test positive for drug use only because they have ingested marijuana off the jobsite, in a way that doesn't prevent satisfaction of essential job functions, and pursuant to California's so-called Compassionate Use Act (CUA), passed by initiative over a decade ago.

By a 5-2 vote, and in an opinion that was less than satisfying, the majority of California Justices said employers can indeed fire employees simply because the employees use medical marijuana.

The Facts of the Case, and the Plaintiff's Argument

The facts of the case, as the court accepted them, are pretty simple, and pretty sympathetic for the Plaintiff. Gary Ross is a U.S. Air Force veteran who sustained disabling injuries as a result of his military service. Since 1999, he has been taking marijuana, on the advice of his physician, to alleviate disabling back pain. He was hired by the Sacramento technology company Ragingwire, which, pursuant to company policy, required him to submit to a drug test.

Ross complied, and was very open about his medicinal use of marijuana. But when his drug tests came back and were (predictably) positive for marijuana, he was terminated. Ross then brought an action under the California Fair Housing and Employment Act (FEHA). FEHA, a state law similar to the federal Americans With Disabilities Act, requires employers in California to reasonably accommodate the physical disabilities of an employee or would-be employee, so long as the employee can, with such reasonable accommodation, perform the essential functions of the job. Ross argued that since he was disabled but could, through the use of medical marijuana, perform the essential functions of his job, Ragingwire violated his state law rights in terminating him on account of his marijuana use.

The Court's First Point: In Light of Federal Law, States Cannot Legalize Marijuana

In rejecting this claim, the California Supreme Court made what were essentially two arguments. But these arguments, whether standing individually or together, do not adequately justify the court's result.

First, the court said the fact that California has decriminalized marijuana use and possession under medical circumstances in the CUA does not, and indeed cannot, change the fact that all marijuana use and possession remains criminal under federal law. As the court put it, "No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law."

This is true enough. But why is illegality under the federal law relevant to a state law FEHA claim? The California Supreme Court elsewhere acknowledged that California could, if it wanted, create a FEHA claim for failure to accommodate medical marijuana use, observing that "[t]here is no question. . . that voters had the power to change state law concerning medical marijuana in any respect they wished." Thus, even the court itself agreed that nothing in federal law prevents a state from requiring employers to accommodate medical marijuana.

The fact that marijuana use remains criminal under federal law is thus largely a red herring. The key question is what California - not federal - law says about an employer's duty to accommodate.

The Court's Second Point: Because the Compassionate Use Act Mentions California Penal Law, It Excludes California Employment Law

That brings us to the court's second argument - that nothing in the Compassionate Use Act passed by the voters directly indicates that it applies to the employment context. Instead, said the court, the operative language of the CUA speaks only to the decriminalization of medical marijuana use. In effect, the court reasoned that because the language of the CUA refers only to the penal code, the CUA does not affect employment law.

This is a form of reasoning sometimes known in the law as "expressio unius." The entire Latin phrase from which the shorthand comes is "Expressio unius est exclusio alterius." Translated, it means that the naming of one thing excludes others that might have been named but were not. Here, criminal law was mentioned; employment law was not, and the court thus reasoned that the voters meant to exclude employment law.

But expressio unius reasoning is not always persuasive, and it doesn't work well with respect to the CUA. For one thing, the CUA states that one of its purposes is to ensure that medical marijuana patients are "not subject to criminal prosecution or sanction" (emphasis added). Although the words "or sanction" might be read to refer only to criminal sanction, they might be read more broadly too.

Moreover, expressio unius reasoning may actually undercut the California Supreme Court's narrow reading of the CUA. One of the CUA's provisions says that "[n]othing in this [Act] shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others. . . " Under expressio unius reasoning, this provision might suggest that the CUA should be construed to supersede other areas of law, such as employment law.

The Court Gave Insufficient Weight to the Fact that this is a FEHA, not a CUA, Case

More importantly and more generally, though, the court's narrow reading of the CUA isn't persuasive in disposing of this case simply because Ross' claim is brought under the FEHA, not under the CUA directly. Thus, the question shouldn't be whether the CUA "speaks to" employment law (as the court asked), but rather whether the CUA's existence has an effect on employment law, particularly, on what "reasonable accommodation" under the FEHA means. And it seems clear that the "reasonableness" of an employee's suggested accommodation can be affected by other laws that don't mention employment or the FEHA, simply because the concept of "reasonableness" necessarily draws on other bodies of law and baseline facts.

For example, the existence of state laws permitting licensed optometrists and opticians to make and sell eyeglasses to customers means, among other things, that an employer cannot discriminate against an employee with vision problems on the ground that the employer doesn't want to hire people who wear eyeglasses. Unless the accommodation the employee seeks - in this example, wearing glasses --- is itself unreasonable because of the costs it imposes on the employer or other employees, the employee has a right to it, whether or not any statute (such as the one licensing optometrists) specifically mentions that particular accommodation.

(The same point can be made with prescription drugs; the federal laws authorizing doctors to prescribe drugs may not specifically mention employment statutes, but surely they affect the meaning of "reasonable accommodation.")

On that key question - whether Ross' medical marijuana use unreasonably burdened Ragingwire, or any of its other employees - the California Supreme Court had surprisingly little to say.

Given the procedural posture of the case, the court had to accept that Ross wasn't using marijuana on the job, and that his use did not impair his ability to successfully discharge the essential functions of the job. So why is tolerating his use an "unreasonable" burden for Ragingwire to bear?

The court said that the CUA doesn't change the reality that marijuana can be abused: "The [CUA] does not eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug." It is of course true that marijuana can be abused, but so too can (almost) all other prescription drugs, whose doctor-approved use surely must be accommodated under FEHA. Just because morphine can be abused, for instance, does not mean an employer can punish an employee for using it to alleviate disability-caused pain under a doctor's supervision and in a way that doesn't impair essential job functions.

Granted, prescription morphine use is legal under federal law, and marijuana is not. But that does not necessarily mean that the feds think morphine is subject to less abuse than is marijuana. And even if it did, again, the question is one of California, not federal law: California voters, by passing CUA, disagreed with any such federal assessment, something the court explicitly said they have a right to do.

Ragingwire argued that Ross was subjecting it to a risk that Ross will be arrested by the feds (and thus unavailable for work) and/or that the workplace may be the target of a federal law enforcement search. However, the court didn't rely on these burdens in reaching its result, perhaps because they seem somewhat fanciful.

In the end, the majority displayed an inclination to read the CUA narrowly (perhaps because it thinks the CUA has turned out to be bad policy). But it did not undertake a careful analysis of the key concept of "reasonable accommodation" under the FEHA, and the way in which "reasonableness" of an employee's proposed course of action necessarily depends on other areas of law that fall outside of, and that don't always mention, employment law.


Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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