MEDICAL MARIJUANA AND WRONGFUL TERMINATION
Is it wrongful termination if I get fired because of a positive test for THC, even if it is from medical marijuana?
You were fired because you failed a drug test at work. They found THC, the active component of marijuana in your blood or urine test. You told your boss that you have a prescription but you are still fired. You are asking, do I have a wrongful termination case because I was fired for medical marijuana?
Well the courts in California have not yet found in the employee=s favor yet in regard to being fired for medical marijuana. However, that doesn=t mean you don=t have a case. The answer would turn on whether you are really using the medical marijuana to treat a disability or if it is just recreational use.
Here in California, dispensary customers are able to get a so called doctor to prescribe medical marijuana. This “doctor” is often close by to the dispensary and the type of doctor nobody would visit for a real medical problem. The great majority of California medical marijuana customers are just using the drug for recreational purposes.
If you “prescription” falls into this class, don’t believe you will ever convince anyone otherwise. You were probably prescribed the medical marijuana for “anxiety” or “sleep disorder” but we all know the real reason. Party. Your employer wont believe you and neither would a jury. So you don’t have a case.
However, if you do have a legitimate disability, you might have a case. For example, cancer, like many other disabilities include treatment by man made THC pills. Marinol is a legal, schedule III drug approved for use for the treatment of nausea and to increase appetite by patients undergoing chemotherapy. The Fair Employment & Housing Act (“FEHA”) prohibits discrimination against employees with disabilities (like cancer), and requires that reasonable accommodations be made for such employees. It may constitute disability discrimination, for example, for your employer to fire you for using a legally prescribed medication to treat your disability.
If you are undergoing cancer treatment, you are disabled under FEHA and the ADA. Your employer is under an obligation to make reasonable accommodations to suit your disability. Even if your company has a policy against THC, a reasonable accommodation would be to allow you to take a doctor prescribed medication containing THC for your disability.