As medical marijuana becomes legalized in states like California and others, questions have arisen over whether employers must accommodate employees who are lawfully prescribed medical marijuana.
A new decision by the California Supreme Court issued in the last couple of weeks, however, permits employers to fire employees because of their medical marijuana status.
Illegal to Discriminate Based on Medical Disability
As many employees already know, in California, it is unlawful for employers to discriminate against or treat employees with a disability different than other employees, or refuse to accommodate their medical needs. Anxiety and most medical conditions that medical marijuana is intended to diagnose (such as chronic pain, cancer, anorexia, AIDS, glaucoma, arthritis, migraines, etc.) generally count as medical disabilities. Employers must make reasonable accommodations for the employees’ disability, unless it would cause undue hardship or poses a health or safety threat to the employer or employer’s business.
California Supreme Court Authorizes Firing of Employee on Medical Marijuana
All that being said, the California Supreme Court recently ruled that California’s Compassionate Use Act does NOT require employers to accommodate the use of illegal drugs. Based on the new Court decision, employers do NOT have to accommodate off-duty, off-premises medical marijuana use. This means that even if an employee is lawfully prescribed medical marijuana and only uses it off-site and not ever at work, the employer does not have any obligation to accommodate use of the medical marijuana by the employee.
Asking for a Doctor’s Note
Even though employers do not have to accommodate medical marijuana, there is authority in California that prohibits employers from asking for a doctor’s note that seeks to disclose the nature of the condition being treated. At least one federal court in California has held that it is unlawful for employers to ask employees to disclose underlying medical conditions, eliciting actual or perceived disability. It is lawful, on the other hand, to ask the employee for a doctor’s note that addresses the prognosis (what the employee can and cannot do) rather than the underlying medical condition.
Testing for Medical Marijuana
California law does allow employer to screen job applicants for drugs and drug-test them before they are hired; however, employers generally cannot test a current employee unless there is a reasonable suspicion that the worker is under the influence. Random testing of employees, who are not viewed to be under the influence, is limited only in very specific circumstances (like transportation employees/drivers subject to federal safety laws).
Illegal to Discriminate Against Medical Conditions
Disability discrimination is illegal and prohibited by both California and federal laws. The California Fair Employment and Housing Act makes it unlawful for any employer with over 5 employees to discriminate against an employee based on an unlawful reason, such as race, national origin, ethnicity, gender, sexual orientation, religion, language, or any other protected reason, such as medical condition. FEHA requires that employers and employees engage in a good faith “interactive process” to determine the appropriate reasonable accommodations for disabled employees. Employers may not request diagnosis information to determine whether an employee is disabled, because this violates privacy interests. Individuals who succeed in bringing disability discrimination claims are entitled to back-pay, compensatory damages, and attorneys’ fees.
Disabilities and medical conditions can include physical medical conditions, but also emotional conditions, such as depression, anxiety, OCD, PTSD, panic attacks, and similar conditions. Medical disabilities do not include sexual behavior disorders, gambling addictions, kleptomania, pyromania, unlawful drug abuse, or similar conditions.
In addition, the Americans with Disabilities Act (ADA) prohibits discrimination against those who are mentally or physically disabled, or are perceived to have a record of such disability. The law requires that such workers be given a reasonable accommodation if doing so would permit them to perform the essential functions of their jobs. Discrimination is unlawful under the ADA against qualified individuals with a disability who can perform the essential job functions with or without reasonable accommodation.
AXIS Legal Counsel represents clients in numerous kinds of lawsuits and disputes involving some of the nation’s largest employers. Whether it is sexual harassment, other kinds of harassment, discrimination, medical/disability discrimination, retaliation, hostile work environment, wage/hour, workplace bullying, or other claims, AXIS Legal Counsel is experienced in the field of employment and labor law and focused on providing high-quality legal service. AXIS’s managing attorney, Rabeh M. A. Soofi, is recognized as one of the “Top Women Lawyers in Southern California” by SuperLawyers Rising Stars, and is a Los Angeles Employment Attorney with experience representing numerous employees with a wide variety of employment claims.
For information on retaining AXIS Legal Counsel for any employment matter, contact [email protected] or call (213) 403-0130 for a confidential consultation, or visit our Employee’ Rights Practice Area, or Individual Rights Portal. AXIS is a Los Angeles, California employment law firm serving employees all over Los Angeles and California.
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