Mowed Down?

This is going to be an interesting case for California, a state that has a medical marijuana law that is in direct opposition to federal law.

The California Supreme Court today heard arguments in the case of an employee who was terminated from his position in 2001 for failing a company drug screen.

Said employee, Gary Ross, was using medical marijuana to treat a back injury previously sustained in the Armed Forces. Mr. Ross claims that by terminating him, his former employer violated state law, The Compassionate Use Act of 1996 and quite possibly the ADA, as they were not willing to accommodate his disability. And the company claims that marijuana is not legal under Federal law and state laws were not ever intended to condone drug use in the workplace.

As stated, this one is a doozy. Most employers I know have a zero tolerance-illicit drug and alcohol policy, though prescription drugs are often included, particularly if they affect an employee’s conduct and performance. To this point, Mr. Ross stated that the marijuana relieved his symptoms so he could get back to work but if he had taken Vicodin he would have had to take time off.

So if this employee’s doctor prescribed medical marijuana (legal) to him and it did not affect his conduct and/or performance is it considered a violation of the company’s drug policy?

I can see both sides of the issue as I believe that seriously ill patients should have access to every/any substance that is going to mitigate their pain. I also believe that employees should not be under the influence of illicit drugs while in the workplace due to safety and other reasons.

I admit that I am truly unsure as to what I would do as HR in this situation.

I’m curious to hear the opinions of others…

1/23/08 UPDATE: Okay, so the verdict is in. The court decided today that FEHA does not require that an employer allow marijuana use as a reasonable accommodation for a disability. Read it here.

4 Replies to “Mowed Down?”

  1. 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.

  2. 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.

  3. 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.

  4. 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”.

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