California medical marijuana firing not disability discrimination

A federal judge has interpreted the California medicinal marijuana law consistently with the California Supreme Court.

A federal district court judge in California decided on August 2, 2016, that a California department store could legally terminate a distribution center employee for failing a drug test that revealed marijuana in his body, despite that it was used pursuant to a valid medical prescription to treat acute and chronic anxiety. The judge in Shepherd v. Kohl's Department Stores, Inc., after applying the law as it had been interpreted by the California Supreme Court in 2008, found that the firing was not illegal discrimination on the basis of disability as forbidden under state anti-discrimination law.

California Supreme Court precedent

The California Supreme Court case interpreted in Shepherd was Ross v. RagingWire Telecommunications, Inc., in which an employee was fired for failing a drug test despite a prescription for marijuana to help him deal with chronic pain from back injuries sustained during military service. The court held that even though California's Compassionate Use Act of 1996 legalized medical marijuana, an employer in the state could still legally terminate an employee when a drug test shows the presence of marijuana in the worker's body, even when it was taken as legally prescribed.

The Supreme Court made much of the fact that while the California medical marijuana law prevents state criminal prosecution, the drug remains illegal under federal law. The state law does not impact how the drug is treated in the employment law context, nor does it require an employer to accommodate legal medicinal marijuana use.

Since the California holding, other states' courts in jurisdictions with legal medicinal cannabis have also upheld an employer's right to a drug-free workplace that allows it to fire an employee who tests positive for marijuana used legally via prescription, citing the drug's illegality on the federal level.

The Shepherd holding

In the federal case, the judge said that the employee was fired not because of his disability (anxiety), but rather because of the medical treatment he chose (medical marijuana), so no disability discrimination existed. Although the judge dismissed the claims under state disability discrimination law, it did allow the plaintiff to continue to trial on these claims:

  • Whether the employer breached an implied contract and the covenant of good faith and fair dealing by violating its own written policy that it would not discriminate against an employee for having a medical marijuana card or if that cardholder tests positive for marijuana in a state where medicinal marijuana is legal
  • Whether the employer defamed the plaintiff by stating with malice, among other things, that the worker reported to work under the influence of marijuana and was unfit to work

A developing area of discrimination law

Obviously, as medical marijuana has not been legal for long in California and is newly legal in some other states, as well as not being legal yet in others, this area of law will be developing for some time in California and across the country. Anyone who experiences negative treatment at work because of the use of medicinal marijuana should speak with a lawyer as soon as possible about how to handle the situation and potential legal remedies.

Attorney Daniel Feder of The Law Offices of Daniel Feder in San Francisco represents employees throughout the Bay area and in Northern California in wrongful termination, disability discrimination and other employment law matters.