Ross

Under this state’s Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5; hereafter the Compassionate Use Act), doctor-recommended marijuana use as a medical treatment *934 is “not subject to criminal prosecution or sanction.” (Health & Saf. Code, § 11362.5, subd. (b)(1)(B).) In a decision conspicuously lacking in compassion, however, the majority holds that an employer may fire an employee for such marijuana use, even when it occurs during off-duty hours, does not affect the employee’s job performance, does not impair the employer’s legitimate business interests, and provides the only effective relief for the employee’s chronic pain and muscle spasms. I disagree.

The majority’s holding disrespects the will of California’s voters who, when they enacted the Compassionate Use Act, surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment. Moreover, as I will explain, unless an employer can demonstrate that an employee’s doctor-approved use of marijuana under the Compassionate Use Act while off duty and away from the jobsite is likely to impair the employer’s business operations in some way, or that the…

The Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5, added by initiative, Prop. 215, as approved by voters, Gen. Elec. (Nov. 5, 1996)) gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges involving the drug, including possession (Health & Saf. Code, § 11357; see id., § 11362.5, subd. (d)). Federal law, however, continues to prohibit the drug’s possession, even by medical users. ( 21 U.S.C. §§ 812 , 844(a)); see Gonzales v. Raich (2005) 545 U.S. 1, 26-29 [ 162 L.Ed.2d 1 , *924 125 S.Ct. 2195 ]; United States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 491-495 [ 149 L.Ed.2d 722 , 121 S.Ct. 1711 ].)

Plaintiff, whose physician recommended he use marijuana to treat chronic pain, was fired when a preemployment drug test required of new employees revealed his marijuana use. The lower courts held plaintiff could not on that basis state a cause of action against his employer for disability-based discrimination under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; see id., § 12940, subd. (a); hereafter the FEHA) or for wrongful termination in…

The Compassionate Use Act of 1996 (Health & Saf.Code, § 11362.5, added by initiative, Prop. 215, as approved by voters, Gen. Elec. (Nov. 5, 1996)) gives a person who uses marijuana for medical purposes on a physician's recommendation a defense to certain state criminal charges involving the drug, including possession (Health & Saf.Code, § 11357; see id., § 11362.5, subd. (d)). Federal law, however, continues to prohibit the drug's possession, even by medical users. ( 21 U.S.C. §§ 812 , 844(a)); see Gonzales v. Raich (2005) 545 U.S. 1, 26-29 , 125 S.Ct. 2195 , 162 L.Ed.2d 1 ; United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 491-195 , 121 S.Ct. 1711 , 149 L.Ed.2d 722 .

Plaintiff, whose physician recommended he use marijuana to treat chronic pain, was fired when a preemployment drug test required of new employees revealed his marijuana use. The lower courts held plaintiff could not on that basis state a cause of action against his employer for disability-based discrimination under the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq.; see id., § 12940, subd. (a); hereafter the FEHA) or for wrongful termination in violation…