Chapman Law Review
MEDICAL MARIJUANA AND THE LIMITS OF THE COMPASSIONATE USE ACT: ROSS V. RAGINGWIRE TELECOMMUNICATIONS
Copyright (c) 2008 Chapman Law Review; Deborah J. La Fetra
Gary Ross suffered a back injury while serving his country in the United States Air Force and treats the continuing pain and spasms with marijuana, pursuant to California’s Compassionate Use Act. Due to his ongoing ingestion of marijuana, Ross failed the pre-employment drug test required by RagingWire Telecommunications, Inc., an information technology company. Upon receiving notice of this failure, Ragingwire fired Ross, who had begun work a few days prior. Ross sued the company for discrimination under California’s Fair Employment and Housing Act (FEHA) and for wrongful termination in violation of public policy.
The sympathetic facts of Ross’s plight–particularly his status as an honored veteran–might have invited the California Supreme Court to look for narrow grounds to uphold his complaint.
But on January 24, 2008, the California Supreme Court rejected Ross’s claims, based on a plain-language reading of the Compassionate Use Act. The court reviewed the language of the Compassionate Use Act, which makes no reference to employment, and also made note of the proponents’ ballot arguments, which spoke of protecting patients from criminal penalties for marijuana and keeping cancer patients out of jail. The court explained that “[n]o state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law . . . even for medical users. Instead of attempting the impossible . . . California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes.”
Given the Compassionate Use Act’s “modest objectives and the manner in which it was presented to the voters for adoption,” the text of the initiative and the arguments supporting its passage yielded “no reason to conclude the voters intended to speak so broadly, and in a context so far removed from the criminal law, as to require employers to accommodate marijuana use.” Thus, the court held that “[n]othing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees,” and the nondiscrimination requirements of the Fair Employment and Housing Act simply did not apply.
In so holding, the court gave a nod to California’s strong tradition of direct democracy, explaining that “the initiative power is strongest when courts give effect to the voters’ formally expressed intent, without speculating about how they might have felt concerning subjects on which they were not asked to vote.” The court further cited People v. Galambos–an earlier California court of appeal decision interpreting the Compassionate Use Act–in which the court observed, “the proponents’ ballot arguments reveal a delicate tightrope walk designed to induce voter approval, which we would upset were we to stretch the proposition’s limited immunity to cover that which its language does not.”
Written by Justice Werdegar, the majority opinion’s simple reference to the plain language of the operative law and voters’ intent contrasts sharply with Justice Kennard’s dissent on the FEHA issue. Justice Kennard first laments that the decision is “conspicuously lacking in compassion,” and then attempts to manufacture a reason to force Ragingwire to employ Ross, relying in large part on the lack of evidence that Ross’s job actually was impaired by his marijuana use. The judiciary, of course, is not meant to impose its own views of the wisdom or “compassion” present in a statute. Instead, judges are supposed to interpret and apply the law.
Ross also argued that he was wrongfully terminated in violation of public policy, tethering his claim to the right of medical self-determination. None of the justices agreed, however, and the court unanimously disposed of the claim in short order, holding that:
[D]efendant has not prevented plaintiff from having access to marijuana. Defendant has only refused to employ plaintiff. To assert that defendant’s refusal to employ plaintiff affects his access to marijuana is merely to restate the argument that the Compassionate Use Act gives plaintiff a right to use marijuana free of hindrance or inconvenience, enforceable against third parties. That argument we have already rejected.
Essentially, Ross could not overcome the hurdle that marijuana possession and use violates federal law all of the time, and California law most of the time. He could not claim an overarching right to possession and use that trumps these legislatively-announced public policies.
This article focuses on two aspects of the employment situation presented in Ross v. Ragingwire. First, this article discusses the public policies motivating employers to keep their workplaces drug-free, even when faced with an employee using medical marijuana under the Compassionate Use Act. Second, this article explores the language of both the Compassionate Use Act and the Fair Housing and Employment Act and the potential ramifications if the statutes had been combined to create a new cause of action. Finally, this article concludes that the California Supreme Court’s decision was more than just a correct application of the Compassionate Use Act’s language; the decision furthered justice as well. A contrary result would have conflated a criminal-defense statute into employment law governed by the broad-ranging provisions of FEHA. The effect on California businesses would have been severe, placing employers between the rock of federal and state laws prohibiting drug-use and the hard place of being required to permit employees, potentially impaired by medical marijuana use, to continue in the workplace.
I. Public Policy Supports Employer Efforts to Maintain a Drug-Free Workplace
Employers have numerous reasons to maintain a drug-free workplace. Among them, employers can lose government funding for projects if they permit employees to use illegal drugs. Impaired employees miss more work than their drug-free co-workers and are more likely to make mistakes when they are at work. Employers may become liable for misdeeds committed by their drug-using employees. Any one of these scenarios could cause adverse economic consequences to an employer, as well as to the employer’s shareholders, employees, or customers if the value of the business suffers. As the Nebraska Supreme Court succinctly explained, a company establishes drug-free workplace rules to “improve work safety, to ensure quality production for customers, and to enhance its reputation in the community by showing that it has taken a visible stand against chemical abuse and the associated detrimental effects.”
A. Employers Must Comply with Drug-Free Workplace Statutes
Companies that contract with the State of California or the federal government have special concerns with regard to maintaining a drug-free workplace. All recipients of state funding must comply with California’s Drug-Free Workplace Act of 1990, regardless of the monetary value of the contract or grant. These recipients must provide annual certification that their employees are prohibited from using controlled substances, including marijuana, as a prerequisite to their continued receipt of state grants. The Act further requires contractors and grantees to establish a drug-free awareness program to inform employees about the dangers of, and penalties for, drug use and the availability of drug counseling. Each employee must agree to abide by the contractor’s or grantee’s drug policy as a condition of employment. The employer’s penalty for failing to comply is suspension of payments under the contract or grant, termination of the contract or grant, or both. Furthermore, the contractor or grantee may be subject to debarment.
Moreover, California recipients of federal aid must provide a drug-free workplace for employees. Under federal law, employers must notify each employee of the prohibition against using controlled substances, including marijuana, and the penalty for violating the law: The suspension or termination of a particular grant and ultimately, debarment for up to five years from future grants. Both the state and federal Drug-Free Workplace Acts provide that violating the obligations of the Act or making a false certification of compliance can result in the contract’s suspension or termination, and may result in debarment of the non-complying contractor or grantee.
B. Marijuana Use has an Adverse Impact on Employee Performance
California employers have statutory authorization to remove drug-using employees from the workplace. These employers have legitimate reasons for wanting to do so, even if they are not subject to the federal or state Drug-Free Workplace laws. Employer fears of employee absenteeism, shiftlessness, or malfeasance while under the influence of marijuana, even when recommended for medical purposes, rest on medical studies demonstrating a wide range of impacts that can occur, especially with prolonged ingestion of the drug. While not discounting the potential benefits to patients and recommending further study, American Medical Association studies state that marijuana ingested for medicinal purposes may have the same biological side-effects as marijuana ingested for recreational purposes. Marijuana increases the heart rate, and a person’s blood pressure may decrease on standing. Marijuana intoxication can cause “impairment of short-term memory, attention, motor skills, reaction time, and the organization and integration of complex information.” Users may experience intensified senses, increased talkativeness, altered perceptions, and time distortion followed by drowsiness and lethargy. “Heavy users may experience apathy, lowered motivation, and impaired cognitive performance.”
These effects translate into potential problems in the workplace. People who smoke marijuana frequently, but do not smoke tobacco, have more health problems and miss more days of work than nonsmokers. Many of these extra sick days are due to respiratory illnesses. Marijuana compromises the ability to learn and remember information, so that a user’s job performance and intellectual or social skills are more likely to diminish. Other studies associate marijuana smoking with increased absences, tardiness, accidents, workers’ compensation claims, and job turnover. For example, “[a] study among postal workers found that employees who tested positive for marijuana on a pre-employment urine drug test had 55 percent more industrial accidents, 85 percent more injuries, and a 75 percent increase in absenteeism compared with those who tested negative for marijuana use.” A recent study by the United States Department of Health and Human Services found that, of workers who admitted ingesting marijuana within the past month, 13.1% worked for three or more employers in the past year; 16.1% missed two or more days of work in the past month due to illness or injury; and 16.9% skipped one or more days of work in the past month. For those workers who did not use marijuana in the past month, only 5.2% worked for three or more employers in the past year; 11.2% missed two or more days of work in the past month due to illness or injury; and 8.3% skipped one or more days of work in the past month. The most dramatic findings, therefore, relate to a marijuana user’s ability to maintain consistency in his employment, both in staying with one employer for more than a few months and actually showing up for work.
C. Off-Duty Marijuana Use also Affects Employee Performance and is of Legitimate Concern to Employers
Some argue that there is a distinction between on-duty and off-duty marijuana use. In Ross, the employee argued that California Health & Safety Code section 11362.785(a), which states, “[n]othing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment,” means that while employers are not required to accommodate the actual ingestion or storage of marijuana on company premises, employers are required to accommodate employees under the influence of marijuana ingested elsewhere. The dissent agreed with this argument. In syllogistic form, the argument goes like this:
1. Employers are not required to accommodate the presence or ingestion of marijuana on company premises.
2. Ross possesses and ingests marijuana at home, not on company premises.
3. Therefore, employers are required to accommodate Ross’s marijuana use.
This combines the logical fallacy of negative premises with the fallacy of illicit process of a major term. In formal terms of Aristotelian logic, the premise is the universal negative proposition that “employers are not required to accommodate drug use on the premises” from which the dissent infers the contrapositive of that proposition, that “employers are required to accommodate drug use off the premises.” “By the laws of logic, however, the inference of the contrapositive is invalid where the starting proposition is a universal negative.” Compounding this logical error is the invalidity of the major term. In Logic for Lawyers, former Third Circuit Court of Appeals Judge Ruggero J. Aldisert cited the following example of the fallacy, which bears a striking resemblance to Ross’s argument:
1. Larceny is a crime.
2. Driving under the influence is not larceny.
The major term of the premise is “crime,” while the major term that follows is “driving.” To come to a logical conclusion, the major term must exist in the premise. Similarly, the dissent’s major term of “ingesting marijuana at home” does not exist in the premise, in which the major term is “ingesting marijuana at work.”
Moreover, the biomedical facts of marijuana use do not allow for such separation between on-duty and off-duty use. While many effects of marijuana dissipate over a short period of time, others–such as respiratory ailments and decreased cognitive ability resulting from prolonged exposure to marijuana–remain concerns over the long term. For example, memory defects may last as long as six weeks after an individual’s last use. These effects, particularly on cognitive abilities that may cause lapses in judgment, are a valid concern for employers.
D. A Policy Favoring Drug-Free Workplaces has no Discernable Impact on the Availability of Willing and Able Workers
In his opening brief to the California Supreme Court, Ross argued that an adverse ruling “will deprive the State of California the benefit of thousands of productive workers.” Yet under the court’s ruling, employers still may choose to permit individuals who use medical marijuana to continue their employment–at least if they are not bound by the various federal or state Drug-Free Workplace Acts. Even after Ross, employers are permitted, but not required to continue employing medical marijuana-using employees. Moreover, there is no evidence of the number of “productive workers” who are at risk of being fired if employers retain a choice of whether to accommodate medical marijuana use.
The experience of other states belies this fearmongering. The medical marijuana statutes of other states contain explicit provisions that employers need not accommodate the use of medical marijuana by their employees. Lacking the modifiers of “on the premises” or “during the hours of employment,” these statutes plainly permit employers to refrain from hiring medical marijuana users who test positive on pre-employment drug tests, apparently without causing dire consequences.
E. Employers may be Liable for Actions of Impaired Employees
History abounds with cases of employers found liable because their employees were driving vehicles, operating heavy equipment, or otherwise performing tasks made more dangerous by their being under the influence of alcohol or drugs. More recently, however, California courts are even willing to consider bizarre and unforeseeable acts, or brutal, violent, and sexual crimes, as falling within the “scope of employment” to reach the employer’s deeper pocket. Facing the expanding specter of liability, employers must be able to cull out job applicants whose alcohol or drug use raises the likelihood of threats to the safety of the workplace, other employees or third parties. “Forcing the employers to retain current drug users would close off one of the few methods that modern employers have left to insulate themselves from unlimited liability” for every wrongful act committed by employees. Employers should not be saddled with a work force engaged in drug use that is largely prohibited by law.
II. The Breadth of the Compassionate Use Act and FEHA Combine to Cover an Extremely Wide Range of Activity
With the Ross decision, California employers can breathe a sigh of relief because a contrary result would have had far-ranging implications. There is a huge swath of individuals covered under both the Compassionate Use Act and FEHA, governing situations far removed from this case.
A. The Compassionate Use Act Permits the Use of Marijuana for Virtually Any Malady, as Authorized by “Healers” of All Varieties
Californians voted for Proposition 215, the Compassionate Use Act, based on ballot materials that emphasized the need for seriously ill people to obtain marijuana to relieve symptoms related to AIDS, chemotherapy treatments, and other very serious ailments. The Compassionate Use Act authorized the use of marijuana for these purposes, but it also did a lot more. Ballot literature emphasized that the proposition would allow “seriously and terminally ill patients to legally use marijuana, if, and only if, they have the approval of a licensed physician.” But this argument suggested limitations not found in the text of the law. For example, Health & Safety Code section 11362.5 may be read to allow the use of marijuana by patients that are not seriously and terminally ill, and the law contains no requirement that the recommendation come from a licensed physician. For example, in People v. Spark, the court opined:
[T]he voters of California did not intend to limit the compassionate use defense to those patients deemed by a jury to be “seriously ill.” As is evidenced by the entirety of the language of subdivision (b)(1)(A) and the language of subdivision (d) of section 11362.5, the question of whether the medical use of marijuana is appropriate for a patient’s illness is a determination to be made by a physician. A physician’s determination on this medical issue is not to be second-guessed by jurors who might not deem the patient’s condition to be sufficiently “serious.”
The campaign literature also suggested that marijuana use is appropriate for a limited number of specific diseases: cancer, glaucoma, AIDS, multiple sclerosis, epilepsy, and spinal cord injuries. The primary sponsor of Proposition 215, Dennis Peron’s Californians for Compassionate Use, published a brochure stating that marijuana has been shown to “help migraine headaches, relieve menstrual cramps, help overcome insomnia, and mitigate withdrawal from alcohol and other hard drugs.” So while the ballot materials and Ross focused on the least controversial uses of medical marijuana, the broad language in the actual statute supports a much wider range of illnesses for which marijuana may be approved. For example, in People v. Jones, evidence of physician “approval” for marijuana use to combat migraine headaches–the physician’s comment, “It might help; go ahead”–was sufficient to raise a defense under the Compassionate Use Act even where the physician disclaimed any intention to “recommend” marijuana use.
Moreover, Proposition 215 does not define the term “physician.” This ambiguity could lead to a broad definition if courts employ the dictionary definition of the term. A “physician” may be a person “skilled in the art of healing” regardless of whether that person is a licensed medical doctor. “A wide variety of professionals are skilled in the art of healing, including chiropractors, homeopaths, and a variety of therapists.” Alternatively, courts could define “physician” more narrowly, based on other statutes in the Health & Safety Code and the ballot arguments. But the courts have not yet ruled on this question and the ambiguity remains. If physicians other than medical doctors are authorized to recommend marijuana, this may increase the range of conditions for which patients obtain approval to use marijuana to treat their symptoms. While licensed medical practitioners have an affirmative defense under state law, they may be unwilling to prescribe marijuana either because they feel the benefits do not outweigh the risks, or they may fear prosecution under federal drug laws. Alternative healers, on the other hand, may exercise less restraint. Had the California Supreme Court held that Ragingwire must accommodate Ross’s marijuana use, the decision would have had consequences far beyond the facts of this case. If an employer must accommodate an employee’s medical marijuana use based on a physician’s note to treat back spasms and pain, then the employer equally must accommodate an employee’s medical marijuana use based on a healer’s half-hearted approval (but not recommendation) that the employee “go ahead and try” marijuana for an entire range of ailments that a jury might describe as “not serious.”
B. FEHA’s Anti-Discrimination Provisions Cover a Wide Range of Physical and Medical Ailments
The California Fair Employment and Housing Act establishes the following civil rights:
(a) The opportunity to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation is hereby recognized as and declared to be a civil right.
(b) The opportunity to seek, obtain, and hold housing without discrimination because of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, disability, or any other basis prohibited by Section 51 of the Civil Code is hereby recognized as and declared to be a civil right.
Civil Code section 51 also prohibits discrimination based on “medical condition,” which is incorporated into the housing discrimination prohibition of Government Code section 12921(b). It is also unlawful, in the employment context, “[f]or an employer, because of the . . . physical disability, mental disability, medical condition . . . to refuse to hire or employ the person . . . .”
The California Legislature intended FEHA to have a very broad scope, even compared to the federal Americans with Disabilities Act of 1990. Section 12926.1 of the California Government Code highlights the difference by declaring:
The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act of 1990 (Public Law 101-336). Although the federal act provides a floor of protection, this state’s law has always, even prior to passage of the federal act, afforded additional protections.
Under the federal Americans with Disabilities Act (ADA), a person can claim the protections of the Act when the disability “substantially limits” a major life activity. An impairment is “substantially limiting” if the person is either “unable to perform a major life activity that the average person in the general population can perform,” or is significantly restricted in the condition, manner or duration under which a major life activity can be performed compared to an average person in the general population. By contrast, FEHA requires only that the impairment “limit,” rather than substantially limit, a major life activity. An impairment limits a major life activity if it “makes the achievement of a major life activity more difficult.” FEHA’s less stringent standard is intended to provide protection for a significant number of conditions that would not be protected under the ADA, including episodic conditions which lack the permanency to be considered “substantial” under federal law.
Moreover, while the ADA does not cover disabilities that can be remedied by “mitigating factors” such as medication or eyeglasses, FEHA evaluates the impairment without regard to mitigating factors that could be, or actually are, taken. The ADA also requires that an employee’s “substantial impairment” is such that an employee cannot perform a broad range or class of jobs as compared to the average person having comparable skills, abilities, and training. Thus, the ADA will not cover an employee’s inability to perform a particular job. In contrast, FEHA does cover situations where an impairment prevents an employee from performing one particular job. The California Supreme Court has noted FEHA’s expansive reach.
The California Legislature recently imported these broad FEHA standards and definitions to each of the thirty-three employment anti-discrimination statutes scattered throughout the California Code. “FEHA’s list of prohibited discrimination standards is more extensive than any of the statutes Chapter 788 amends.” Moreover, Chapter 788 extends the authority of the Agricultural Labor Relations Board to decertify any labor organization that the Department of Fair Employment and Housing finds to have discriminated based on any standard listed in the FEHA.
Had the California Supreme Court held that the Compassionate Use Act required accommodation under FEHA, the combination of the broad language in the Compassionate Use Act and the comprehensive reach of FEHA would have placed employers in an untenable position that drafters of these statutes could not have independently have envisioned.
Applying the plain language of the Compassionate Use Act, the California Supreme Court properly respected the intent of the voters to permit a large number of patients to use marijuana free from the threat of criminal prosecution, while recognizing that the Act does not stand as a statutory trump card over every other statute and common law duty. Employers who contract with, or receive grants from, the federal and state governments are required to comply with drug-free workplace laws or risk serious penalties, including debarment. All employers are legitimately concerned with the hazards presented by employees who are physically or mentally impaired due to marijuana use, particularly when such impaired employees may cause harm to their co-workers or customers, rendering their employers liable under common law tort theories. Rather than stretching the language of the Compassionate Use Act to cover employment situations never mentioned in the statute or contemplated by the voters, and creating an untenable situation for all California employers, the California Supreme Court’s ruling correctly recognizes the limitations of the Act as written.
To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
[A]n individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient’s medical record the physician’s assessment of whether the patient has a serious medical condition and whether the medical use of marijuana is appropriate.
Statutes enacted by initiative cannot be amended by the Legislature, however, so this definition must be confined to the registration identification program of that particular code section. See Rossi v. Brown, 889 P.2d 557, 561 n.2 (Cal. 1995) (“Once adopted, unless the measure otherwise provides, an initiative statute may be amended or repealed only by a statute approved by the voters.”).
[A] practitioner’s action of recommending or prescribing Schedule I controlled substances is not consistent with the “public interest” (as that phrase is used in the federal Controlled Substances Act) and will lead to administrative action by the Drug Enforcement Administration (DEA) to revoke the practitioner’s registration. DOJ and… HHS will send a letter to national, state, and local practitioner associations and licensing boards which states unequivocally that DEA will seek to revoke the DEA registrations of physicians who recommend or prescribe Schedule I controlled substances.
Executive Office of the President, Office of National Drug Control Policy, The Administration’s Response to the Passage of California Proposition 215 and Arizona Proposition 200, 62 Fed. Reg. 6164 (Feb. 11, 1997).
Under the law of this state, whether a condition limits a major life activity shall be determined without respect to any mitigating measures, unless the mitigating measure itself limits a major life activity, regardless of federal law under the Americans with Disabilities Act of 1990. Further, under the law of this state, “working” is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.
See also Jensen v. Wells Fargo Bank, 102 Cal. Rptr 55, 64 (Ct. App. 2000) (quoting § 12926.1(c)); Cripe v. City of San Jose, 261 F.3d 877, 895 (9th Cir. 2001) (quoting § 12926.1(c)).