The California electorate approved Proposition 215, the Compassionate Use Act, in 1996. The initiative expressly protects certain users of marijuana for medical reasons from prosecution under two specific criminal laws. The initiative did not address a number of issues, however, including what happens when marijuana metabolites are revealed by a pre-employment drug test. Twelve years passed before the California Supreme Court weighed in on that question. In Ross v. RagingWire Telecomm. Inc., 2008 DJDAR 1217 (Cal. Jan. 24, 2008), the court held that Proposition 215 provides no employment law protection to medical-marijuana users. As a result, unless there is legislative action by the electorate or the Legislature, disability-discrimination and drug-testing laws are not affected by Proposition 215.
Many employment laws in California are codified. However, no law generally addresses drug testing of applicants and employees. Specific statutes and regulations mandate drug testing for certain applicants – for example, for some government jobs and certain truck drivers. A couple of municipalities, such as San Francisco, prohibit most drug testing for private employers within its jurisdiction.
For the rest of the work force, the courts have fashioned certain rules, principally based on the California Constitution’s guarantee of the right to privacy. In the mid-1990s, the California Supreme Court decided two cases that set the parameters for lawful drug testing: Hill v. NCAA, 7 Cal.4th 1 (1994), and Loder v. City of Glendale, 14 Cal.4th 846 (1997). In essence, the court endorsed a balancing test, in which the individual’s expectation of privacy and the proposed intrusion are weighed against the employer’s legitimate business interests. Applying that test, the Supreme Court, and lower courts in later decisions, decided that properly administered applicant (for new employment or a job change) drug testing generally will be upheld. Testing based on bona fide “reasonable suspicion” of current use also generally is permitted.
The courts also have decided that, unless testing is based on “reasonable” or “individualized” suspicion, it is not justified in the normal run of cases. That is because, under the balancing test, the intrusion of random or suspicionless testing outweighs the employer’s general interest in a drug-free work force. In decisions following Loder, courts have authorized random and suspicionless testing in situations in which the nature of the job is considered hazardous or “safety-sensitive.” The courts consider relevant whether an intoxicated employee could cause injury or damage to the public or co-workers.
Drug testing is not considered a “medical examination” under the Fair Employment and Housing Act or the Americans with Disabilities Act. Therefore, drug tests are not subject to limitations that those laws place on medical examinations for applicants or employees.
Marijuana and Drug Testing
Marijuana use leaves “metabolites” of its active ingredient in the blood and urine. These metabolites are detectable by standard tests. The Loder opinion, rendered after Proposition 215’s passage, authorized pre-employment tests for illegal drugs, including marijuana. Marijuana is considered an “illegal” controlled substance under federal law. It cannot be “prescribed” by a doctor. Rather, under Proposition 215, a doctor may only “recommend” marijuana use for treatment. Proposition 215 exempts doctors from prosecution for doing so, just as it provides to users a defense from prosecution for certain crimes under state law.
The two laws prohibit disability discrimination. They also require “reasonable accommodation” of disabilities, which may include adjusting company policies to enable employees or applicants to perform essential job functions. Employees with disabilities taking prescribed medication for pain or treatment may be entitled to “reasonable accommodation,” such as coming to work under the influence of medication and adjusting schedules to accommodate the effects of medications. Because marijuana is not a prescription drug, Proposition 215 and Loder left open the question of drug testing and denial of employment for marijuana use permitted under Proposition 215.
The RagingWire Decision
The Supreme Court decided RagingWire after a demurrer. So all allegations in the complaint were accepted as true. Gary Ross applied for a position with RagingWire Telecommunications Inc. Because of an injury suffered in the military, he experienced chronic back pain. He received a doctor’s recommendation under Proposition 215 to use marijuana to ease his pain and muscle spasms. RagingWire subjected Ross to a routine, pre-employment drug test. After the results came back positive for marijuana’s metabolites, RagingWire terminated Ross’s employment.
Ross claimed that discharging him because he failed the drug test amounted to disability discrimination under the Fair Employment and Housing Act. According to Ross, Proposition 215 rendered his marijuana use lawful, because marijuana should be treated like any other prescription drug. Ross said RagingWire did not attempt to accommodate him, which could have included waiving the drug-testing requirement. The Sacramento County Superior Court sustained the company’s demurrer, holding that the law does not require employers to waive drug-testing requirements regarding marijuana use sanctioned under Proposition 215. The 3rd District Court of Appeal affirmed in a 3-0 decision. The Supreme Court granted review.
The 5-2 majority decided that Proposition 215 did not alter the legal analysis of marijuana use under employment law. In the opinion, written by Justice Kathryn Werdegar, the court turned aside arguments that marijuana should be treated the same as any other prescription drug, because marijuana cannot be “prescribed,” only recommended. The court also rejected Ross’s argument that Proposition 215 should be construed broadly, noting that the initiative process is best-served when initiatives are enforced according to their terms. The majority examined the legislation passed in 2004, called the Medical Marijuana Program Act, aptly numbered SB 420 (the Legislature likes an inside joke, apparently). Again, the court found that nothing in the law, passed years after RagingWire fired Ross, affected employment rights.
Once the court refused to hold that marijuana is generally “legal” to use, the majority had no trouble deciding that the law did not require RagingWire to accommodate Ross’ use of medical marijuana. In fact, noting that it was “perhaps too obvious to have generated appellate litigation,” the court held that the law does not require accommodation of illegal drug use generally.
Justices Joyce L. Kennard and Carlos R. Moreno dissented. Kennard, who was active at oral argument, wrote that the majority’s narrow interpretation of the Compassionate Use Act lacked compassion. The dissent would have held that employers must accommodate conduct that might well be illegal under federal law, as long as it did not result in an “undue hardship.” Much of the dissent’s reasoning accepted Ross’ allegation that he would not use or be under marijuana’s influence at work.
Although the justices split 5-2 on the claim, they unanimously decided Ross could not successfully assert a common-law claim for wrongful termination in violation of public policy. Ross suggested that RagingWire discharged him contrary to the public policy protecting an individual’s choice of medical treatment, Proposition 215 itself, and the right to privacy. The court decided that these laws did not support a generalized “public policy” protecting applicants from drug testing, particularly in light of Loder. Even Kennard in her dissent agreed that one cannot claim a violation of public policy when federal and state laws don’t agree on what the public policy is or should be.
Within hours of the court’s decision, California legislators vowed to overturn it. However, it will be some time before employers can be certain whether such proposed legislation will pass and what it will say. A new initiative statute could broaden Proposition 215’s reach to the workplace. Proposition 215, however, was passed as a “narrow” law designed only to exempt users from criminal prosecution, primarily for possession of medically recommended marijuana.
Unless the Legislature or the voters overturn the RagingWire decision, the intersection of disability discrimination and drug-testing laws remains the same as it ever was. Employers remain free to conduct applicant testing for marijuana use, as well as other illegal drugs. Employers choosing to do so should ensure that clear policies are drafted and distributed to employees and applicants. Doing so minimizes the expectation of privacy. Additionally, testing itself should be reliable and conducted in ways that best protect individuals’ privacy interests. Finally, employers trying to apply a “reasonable suspicion” drug testing standard must ensure their programs comply with the courts’ understanding of what amounts to “reasonable suspicion” and what does not.