So it may come as no surprise that two years ago, in the case of Ross v. Ragingwire Telecommunications, Inc., the California Court of Appeal ruled in favor of all employers when it held that an employer did not have to accommodate an employee’s use of marijuana, even if such use was prescribed by a physician under California’s Compassionate Use Act. However, the California Supreme Court granted review shortly thereafter taking away the validity of the Court of Appeal’s ruling, at least for the time being. The California Supreme Court is expected to rule within the coming months on whether or not employers must accommodate an employee’s prescribed use of marijuana under the Fair Employment and Housing Act.
Ross v. Raginingwire Telecommunication Inc. involves a job applicant, Gary Ross, who applied for and was given a conditional offer of employment with Ragingwire Telecommunications as a lead systems administrator. Ross submitted to a pre-employment drug screening which returned a positive result for THC. Ross was using marijuana pursuant to a physician’s recommendation under California’s Compassionate Use Act which grants, in part, criminal immunity to users of marijuana who are using pursuant to a physician’s recommendation.
Ross’ offer of employment was revoked. There appeared to be no dispute that Ross could perform the essential functions of the position. Ross filed suit against Ragingwire alleging, in part, that he had been discriminated against because of his "disability" and Ragingwire had failed to provide him a reasonable accommodation in violation of the Fair Employment and Housing Act (FEHA). The California Court of Appeal held that an employer does not have to provide an accommodation for a disability by allowing an employee to use illegal drugs. The court stated that the "dispositive issue" was whether Ross’ use of marijuana was legal. Although Ross’ use was legal under state law, his use was illegal under federal law, specifically, the federal Controlled Substances Act.  In so finding, the court relied upon the United States Supreme Court’s ruling in Gonzales v. Raich. 
Gonzales v. Raich presented the issue of whether the long arm of the Constitution’s Commerce Clause could reach the local use, cultivation, and distribution of marijuana within the state of California under California’s Compassionate Use Act. The U.S. Supreme Court’s majority found that the Commerce Clause could reach California’s Compassionate Use Act, thus making use, cultivation and distribution illegal under federal law within the state.
What is most interesting about Ross v. Ragingwire Telecommunications’ reliance on Gonzales v. Raich, is what happened in March, 2007 when Gonzales v. Raich was remanded back to the federal Ninth Circuit Court of Appeals. The Ninth Circuit Court of Appeals, in Raich v. Gonzales, rejected the petitioners’ argument that the Controlled Substances Act violated the Tenth Amendment, consistent with the U.S Supreme Court’s ruling. However, one of the petitioners, Raich, then argued that the plain text of the federal Controlled Substances Act did not prohibit her possession of marijuana pursuant to a doctor’s order. Indeed, the Controlled Substances Act states that possession of a controlled substance is unlawful unless it is "obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice..." (21 U.S.C. § 844(a).)
However, Raich raised this argument for the very first time on remand to the federal Ninth Circuit Court of Appeals. The Ninth Circuit therefore declined to decide whether Raich’s mere use and possession was legal under the actual terms of the Controlled Substances Act.
If the California Court of Appeals found that the "dispositive issue" was whether Ross’ use was illegal under federal law and Gonzales v. Raich and Raich v. Gonzales left this issue open, what will the California Supreme Court find in the coming months? Even more so, we may have a state court interpreting a federal statute?
Indeed, the federal Controlled Substances Act makes illegal the use of marijuana except where such use is pursuant to a "valid prescription". The Compassionate Use Act uses the term physician’s "recommendation" as opposed to "prescription". The Code of Federal Regulations defines "valid prescription" as a prescription which is issued for a "legitimate medical purpose by an individual practitioner licensed by law to administer and prescribe the drugs concerned and acting in the usual course of the practitioner’s professional practice". (21 C.F.R. § 1300.02.) This "definition" does little to clarify what is or what is not a "valid prescription" and leaves open whether in the end the California Supreme Court will find that Ross’ use must be accommodated.
Nonetheless, if the California Supreme Court rules in favor of the employee, the decision will probably be narrowly limited to the facts presented in Ross v. Ragingwire Telecommunications, Inc. Ross was applying for a position as a lead systems administrator, a desk job and one which does not appear to involve safety or security-sensitive functions. Ross apparently was able to perform the essential functions of his position and had been doing so for a number of years without complaints. The facts are not clear if Ross was "under the influence" of marijuana while at work.
Accordingly, if the California Supreme Court finds for the employee, we cannot expect that employers must allow employees in safety or security-sensitive functions to be using marijuana. Many public employers are subject to state and federal statues which it appears the employer in Ross v. Ragingwire Telecommunications was not. For example, all employers who receive certain state tax revenue must adhere to the state’s Drug-Free Workplace Act of 1990  which requires the subject employers to prohibit its employees from using controlled substances, including marijuana. This is in addition to many federal laws that also require drug testing and a drug-free workplace.
For example, the federal Department of Transportation regulations prohibit certain drug use and require drug testing for all "safety-sensitive functions" including operators of commercial motor vehicles or public transit systems, mechanics, dispatchers and even certain security personnel within a mass transportation operation.  Department of Transportation regulations also require that an employee be put out of performing safety-sensitive functions for varying lengths of time if the employee tests positive for a controlled substance, including marijuana.
In addition, case law has found that employees who perform safety or security-sensitive functions may be properly drug tested and disciplined for positive drug tests including fire fighters, peace officers, correctional officers, employees with national security clearance, waste water treatment plant workers, emergency medical technicians, and workers operating heavy equipment. 
In the meantime, while we await the California Supreme Court’s decision in Ross v. Ragingwire Telecommunications, Inc. to provide much needed guidance to employers, employers can take measures to protect themselves from liability when presented with an employee who is using marijuana pursuant to a doctor’s prescription.
First, assess if the position requires the employee to perform safety or security-sensitive functions. For many employers, this may be easy if the employee’s position is considered such under a specific federal or state law. Second, employers should follow all state and federal laws requiring certain employees to refrain from the use of controlled substances.
Third, if an employee is not performing safety or security-sensitive functions and no state or federal law mandates that the employee or the workplace remain drug-free, assess whether the employee is under the actual effects of marijuana while on the job. An employer does not necessarily have to tolerate an employee who is presently impaired because of prescribed marijuana use no more than an employee who is impaired because of prescribed use of legal pain-killers.
Fourth, engage in the interactive process as set forth in FEHA. Is there a way for the employee to perform the essential functions of the job without being presently impaired by the effects of marijuana use?
Fifth, document, document, document. Keep accurate notes and paper trails of every effort to engage in the interactive process with the employee.
Hopefully, it will not be much longer for the California Supreme Court’s decision and employers will not be held in limbo over their employees’ use of marijuana under California’s Compassionate Use Act. The outcome could potentially carry some interesting and profound effects for employers throughout the state and probably will not put to rest all issues related to California’s Compassionate Use Act.
 Penny v. Kennedy (6th Cir. 1990) 915 F.2d 1065; American Fed. Of Govn. Employees AFL-CIO v. Roberts (9th Cir. 1993) 9 F.3d 1464; Harmon v. Thornburgh (D.C. Cir. 1989) 878 F.2d 484; Bailey v. City of Baytown (S.D. Tex. 1991) 781 F.Supp. 1210; Piroglu v. Coleman (D.C. Cir. 1994) 25 F.3d 1098; Krieg v. Seybold (7th Cir. 2007) 481 F.3d 512.
This article was written by Frances E. Rogers, an associate in the Fresno Office of Liebert Cassidy Whitmore, a labor and employment firm. For more information regarding the firm, visit www.lcwlegal.com
Liebert Cassidy Whitmore publishes this article as a service to our clients and other friends for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions and the transmission of this information is not intended to create an attorney-client relationship between sender and receiver. You should not act upon this information without seeking professional counsel.
 (2005) 132 Cal.App.4th 590
 21 U.S.C. § 800 et. seq.
 (2005) 125 S.Ct. 2195
 Cal. Gov’t Code § 8350 et. seq.
 49 C.F.R. §§ 382.107, 655.4.