Medical Marijuana Use Upheld
by Ted Olsen
Due to citizen ballot initiatives in many states—including Colorado—legal rights and protections have been extended to persons who use marijuana for medical reasons. See Colo. Const. Art. XVIII, Section 14. For the most part, Colorado employers have not changed their drug testing policies in reaction to this initiative, which passed in 2000. Nor have employers changed their rules against employee use of illegal drugs, including marijuana. In general, employers have believed that the Colorado constitutional amendment simply did not provide people with employment-related rights. One basis for this belief was the statement in the Constitutional amendment, "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place." Id., § 10(b).
On January 24, 2008, the California Supreme Court issued a decision giving further comfort to employers. Ross v. RagingWire Telecomm Inc., 49 Cal. 4th 920, 174 P.3d 200 (2008).
In RagingWire, the Court decided that an employer that discharges a worker for using medical marijuana (under a system very similar to Colorado's) is not liable under the California employment discrimination law (the Fair Employment and Housing Act) or under California state public policy.
An employee was ruled to have been lawfully fired for testing positive for THC, despite the fact he had produced documents to his employer proving his use of marijuana was for medical purposes. The California Supreme Court reasoned that there was no indication in the ballot initiative process or the implementing legislation that employers were obligated to make accommodation for the users of drugs prohibited by federal law. Nor did California state public policy make unlawful the discharge of an employee for using drugs prohibited by federal law.
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© 2008 Sherman & Howard L.L.C. March 3, 2008