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No need to accommodate Rx marijuana use

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in Human Resources

The California Supreme Court has ruled that an employer doesn’t have to accommodate an employee’s marijuana use even though he had a valid prescription. Employers can and should continue to use post-offer, pre-employment drug tests if having a work force free of impairment is an important safety consideration.

Recent case: Gary Ross, an Air Force veteran, applied for a job with Sacramento telecommunications company Ragingwire. He held a medical marijuana card issued under the Compassionate Use Act allowing him to use marijuana to treat a back injury he suffered while on active duty.

Ragingwire hired Ross and asked him to take a drug-screening test. The company fired him when the test results showed he had used marijuana. Ross sued, arguing he had already told Ragingwire about his legal usage. He charged that the company violated the Fair Employment and Housing Act (FEHA) by discharging him because he used the drug and for failing to reasonably accommodate his medical condition.

The California Supreme Court dismissed his case. It concluded that nothing in the Compassionate Use Act suggests that the law was intended to apply to employers. It also said that FEHA does not require employers to accommodate illegal drug use, and using marijuana is still illegal under federal law. It does not matter that California and 11 other states allow some legal use. (Ross v. Ragingwire Telecommunications, No. S138130, Supreme Court of California, 2008)

Final note: Remember that under the ADA, an employer cannot ask an employee to undergo a medical exam before extending a job offer. Because drug tests can reveal disabilities (by highlighting use of legal prescription drugs), such tests must be performed only after a job offer has been made. All tests must be performed for a valid business reason. 

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