Under existing law, it is true that Californians have the right to obtain and use marijuana for "medical purposes" where medical use has been deemed appropriate and recommended by a physician because the person's health would benefit from the use of marijuana in treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. (See, Health & Saf. Code Sec. 11362.5(b)(1), commonly referred to as the Compassionate Use Act).

However, marijuana use remains illegal under federal law, and a California employer is free to discipline and even terminate an employee who merely admits using marijuana off site and on their own time. There are no protections for Medical Marijuana use in the workplace, or by employees even off-site and on their own time if the employer maintains a drug free workplace policy.

Back in 2005, the U.S. Supreme Court in Gonzales, Attorney General. v. Raich, 125 S.Ct. 2195 (2005), held that in most states with medical marijuana laws, an employer may safely refuse to accept medical marijuana as a reasonable medical explanation for a positive drug test result.

In 2008, the California Supreme Court, in Ross v. RagingWire Telecommunications, 42 Cal.4th 920 (2008), similarly held that while the Compassionate Use Act permits the medical use of marijuana, the Fair Employment and Housing Act does not prohibit a California employer from terminating an employee who is using medical marijuana with a doctor's recommendation even if such use is on the employee's own time and off the premises of the employer.

In May of 2012, in James v. City of Costa Mesa, 700 F.3d 394, the Ninth Circuit Court of Appeals held that the Americans with Disabilities Act (ADA) does not protect against discrimination on the basis of medical marijuana use, even if that use is in accordance with state law explicitly authorizing such use. According to the Ninth Circuit, the use of medical marijuana remains illegal under federal law, and therefore falls within an unprotected exception to the ADA relating to the "illegal use of drugs."

As a result of all these courts' rulings, California employers should (at least for the moment) rest assured that they are not required to bow to their employee's assertions that medical marijuana must be tolerated. In fact, to the contrary, if your company does work for the US Government, or if your company has any safety related positions, allowing the use of medical marijuana may run afoul of OSHA laws requiring a safe and healthful workplace and certainly violates other federal laws. According to the Department of Transportation, which regulates and requires drug testing requirements for certain safety-sensitive positions, it is "unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's regulations to use marijuana."

California employers should continue to comply with applicable federal law, and those which are not subject to such federal regulations should review their substance abuse policies to ensure they are not artificially creating a discriminatory situation.