Cannabis has been receiving quite a bit of coverage in the media, and some very important information continues to slip through the cracks. In an effort to spread as much information as possible, Smoke Reports will be posting breakdowns of articles that you may have missed during their original print.
Last Sunday, the SF Chronicle‘s Business Report published a great piece on the current situation between Californian employers and their employees with legal California medical cannabis recommendations (Original article: Net Worth Kathleen Pender). You are encouraged to read the original column which really dives into both sides of the situation.
Original article: http://www.sfchronicle.com/business/networth/article/Can-your-boss-stop-you-from-smoking-medical-6067585.php
Breaking Down the Key Points:
Some California employees may need cannabis during the work day to maintain a functioning level, so what level of accommodations must an employer provide to an employee with a doctor’s recommendation for cannabis? Pender suggests that there are three basic attitudes that employers can adopt for cannabis patients:
1. Allow the employee to smoke outside and return to work.
2. Tell the employee to go home, smoke, and return once the effects have worn off.
3. Submit the patient to a drug test and terminate employment if the test returns positive.
In CA, employers must accommodate employees with medical conditions or disabilities, but they are not required to permit cannabis use in the work place, even for recommended medical use. California law does not prohibit companies from terminating employees for cannabis use on the job, just as alcohol use is generally considered detrimental to the work environment.
Ross vs. RagingWire Telecommunications Inc.: In January 2008, the California Supreme Court voted 5-2 in favor of the employer, which set a precedent that the Compassionate Use Act (CUA) does not apply to employment. This gives employers full discretion when deciding on company cannabis policy. Justice Joyce Kennard condemned the majority ruling, saying “California voters…when they enacted the Compassionate Use Act, surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment.”
Federal (Americans with Disabilities Act) and California law (CA Fair Employment and Housing Act) state that no employer can discriminate against mental or physical disabilities, provided the symptoms greatly impair “major life activities.” California defines disabilities more loosely, saying that major life activities must be “difficult,” rather than “substantially limited,” as worded in the Federal definition. Because of the the Supreme Court ruling in the matter of Ross vs. RagingWire, cannabis policy in regards to disability is completely up to the employer.
Employers can prohibit staff from possession, usage, and being present under the influence when on the clock, much like any intoxicating substance or pharmaceutical. To avoid discriminating against disabilities, most legal departments suggest attempting to make accommodations for individuals with cannabis recommendations. Still, employers can consider the imagined cost of lost productivity or distraction to the work environment when approving or denying requested accommodations.
Ultimately, the discretion for accommodating cannabis patients lies with the employer. However, employers cannot take medical cannabis use into account when hiring or firing an employee or applicant with a doctor’s medical recommendation. So when someone with a cannabis card does get terminated for testing positive for legal use, there may be a valid case for discrimination.
Justin Shepherd and Kohl’s
Pender points to a case filed in October, in which Justin Shepherd, a distribution center worker employed by Kohl’s Corporation was fired for testing positive for cannabis. Shepherd has a legitimate doctor’s approval and was fully compliant with California law.
-June 2006: Shepherd hired at Kohl’s.
-2011: Shepherd diagnosed with anxiety and recommended cannabis.
-January 2014: Shepherd injured on the job. Supervisor sends him to company health care provider for worker’s compensation. Shepherd tested positive for minimal amounts of cannabis and was terminated by Kohl’s management, even after showing them his medical documentation.
Shepherd’s suit claims Kohl’s is discriminating against a disability under state law, and that consideration of his cannabis use during the termination process violated his rights. The odd thing is that Section K of Kohl’s employment policy states no employee shall be discriminated against during the hiring or firing process based on either “(a) the Person’s status as a registered medical marijuana cardholder; or (b) A registered medical marijuana cardholder’s positive drug test for marijuana components or metabolites.”
In December, Kohl’s successfully requested that the case be moved from California Superior Court to the U.S. District Court in Fresno, CA. Clearly, Kohl’s wants to operate under the stricter Federal regulations on both disability discrimination and cannabis.