I’ll come right out and say it: I’m not a fan of the terminology surrounding the marijuana legalization movement because, frankly, the description on the label does not match up with what people expect to find in the bottle.
I recently represented a client in a proceeding related to her employer’s desire to block his unemployment insurance benefits after they fired him for testing positive for THC during an employment-related drug test. This client never went to work under the influence, never smoked on days he was working or on call, and never smoked or even possessed weed on the employer’s property.
Of course, the employer was aware that my client had a medical marijuana card and current physician’s recommendation in accordance with California law. But after the dirty test, management began concocting a sham paper trail of excuses to justify the termination–even though they didn’t actually need one. Then they opposed the benefits, claiming that they’d fired my client for “good cause.” If they won, my client would not received unemployment benefits until he found his next job, and could even be forced to repay benefits.
After winning my client’s hearing and restoring his unemployment insurance benefits, it was only natural for him to ask if he could sue the employer. And that’s where things got tricky.
Like most people, including his employer, my client assumed that his use of weed to treat medical conditions was completely legal and his employer had violated his rights by firing him for it. His next instruction to me was something along the line of, “Let’s sue the bastards!”
Not so fast.
Although California’s Compassionate Use Act more or less decriminalized possession and cultivation of marijuana for medical purposes in California, no one has yet bothered to clarify any of the other rights that one might think are reasonably necessary to make it possible for patients to safely use it for relief.
In fact, California law specifically provides that an employer need not allow the use of medical marijuana on their property or during work hours. (Health & Safety Code § 11362.785.) That doesn’t seem very controversial.
But what about a patient who lawfully uses medical marijuana at home, on their own time, as recommended by a physician to treat a legitimate medical condition? Isn’t that protected?
Sadly, the answer is “no.”
Even if a patient lawfully uses medical marijuana but doesn’t spark up at work, or during work hours, their employer can still legally terminate terminate them. One cannot sue a California employer for wrongful termination based on the use of medical marijuana, even if it’s at home and on the employee’s own time. Nor does the employee have any claim under FEHA or the ADA. (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920.)
This is potentially a huge nightmare for citizens who use “legal marijuana” and later learn that they can be fired for it. In fact, there are employment-related exclusions similar to California’s in the recently passed states as well. Oregon’s Measure 91, Section 4 subdivision (1) states that:
Sections 3 to 70 of this Act may not be construed:
(1) To amend or affect in any way any state or federal law pertaining to employment matters.
Alaska Ballot Measure 2, Sec. 17.38.120(a) similarly provides:
Nothing in this chapter is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.(Emphasis added.)
To avoid re-creating a hazy situation similar to California’s Wild West of Weed, Reformers who are drafting (or legislators who are implementing) marijuana legalization laws need to very clearly spell out which protections patients or users (as the case may be) are entitled to under state law. But if they won’t do that they should at least be careful about their use of language in promoting their position so as not to lure voters into a false sense of security.