[ASA Field]

February ASA Legal Tip of the Month
Employment Rights and Medical Marijuana: Post-Ross v. Raging Wire
Part 1 of 2: Currently Employed Patients

In the disappointing January decision, Ross v.RagingWire, the California Supreme Court determined that medical marijuana patients cannot state legal claims for damages under the Fair Employment and Housing Act or on public policy grounds for retaliation from employers for testing positive for marijuana. Unfortunately, employment discrimination against medical marijuana patients remains a widespread problem. What does this mean for you?

If you are a patient who is in a non-safety-sensitive position, and your employer has no probable cause to administer a drug test (such as your involvement in an accident or injury), and you have not previously agreed to drug testing as a condition of your employment, then you may refuse to take a drug test when asked by your employer. If you are retaliated against for doing so, you may have a legal cause of action.

If your employer retaliates against you for being a medical marijuana patient, you can still file a complaint with the Department of Fair Employment and Housing, but know that it is a mostly symbolic statement, as it is almost certain no action will be taken under current law.

The ray of hope for patients is that ASA is working with California Assemblyman Mark Leno to pass legislation that codifies employment protections for medical marijuana patients into law.