Of course, the ultimate problem here is that federal law is so far behind the times (and public opinion) in regard to medical marijuana. Where a state like California has chosen to allow patients to use medical marijuana with a doctor’s recommendation, I’d think an employer should treat it like any other medical accommodation — i.e., the question is just whether the employee can perform the essentials of the job with reasonable accommodation. If the employer in this case (and I’m not familiar with the details of the case) is only concerned that the employee is using an “illicit drug,” they’re missing the entire point of the California law … which is to protect medical marijuana patients.

Left by Alison on November 6th, 2007

Yeah it seems to me like the main issue here should be whether or not this person can perform their job duties properly while medicated at work. If not then maybe they need to take a medical leave while they recover to the point that they can.

Left by chriso on November 7th, 2007

Considering this as a matter of law only, the trial court and court of appeals were correct on this one. Neither state or federal law protects Ross in this case. In addition, it’s a bit difficult to consider a claim under a federal law (ADA) with a straight face, when the claimant is in blatant violation of another federal law regarding illegal drugs.

If the CA Supreme Court rules in favor of Ross on this, it’ll get to the top of the docket at the US Supreme Court (and overturned) so quickly that we won’t even have time to wonder about how to proceed.

This from a proponent of medical marijuana, when managed appropriately, by the way.

Left by Derek on December 4th, 2007

Yet again employers attempt to look for the black or white in justifying their own decisions. I agree that unless an employee’s behavior / conduct or performance is suffering as a direct result (how is this substantiated?) from medical marijuana, a doctor’s recommendation should be sufficient. But how do we manage that employee’s Rx use? Further, how would HR professionals communicate to that employee that their use of an illicit drug should remain confidential, not to be shared with other staff? I had an incident where an employee shared with HR their use of medical marijuana, as it was recommended by a physician because this employee suffered from Epilepsy (as was evidenced once by a seizure at work). The employee’s job performance was excellent…behavior not so at time, but this employee performed the major and essential functions of their position description.

I think too often employers attempt to blanket issues, esepcially sensitive ones, rather than allow room for “gray”.

Left by Gary on December 27th, 2007