©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 161 California Legislature provided a partial answer to this question in 2003, by providing that the Compassionate Use Act does not “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.”79 This language arguably implies that an employer must accommodate an individual’s use of medical marijuana beyond working hours and off the employer’s premises. Yet, in good news to employers, the California Supreme Court in 2008 held, 5-2, that denial of employment because of an individual’s off-duty, off-premises use of marijuana did not violate the FEHA or any public policy established by California’s constitutional right to privacy.80 The plaintiff, an engineer, flunked a drug test because he tested positive for marijuana. He provided a physician’s note recommending that he use marijuana to help alleviate his chronic back pain. When he nonetheless was fired for flunking the drug test, he sued the employer for discriminating against him because of his disability and for failing to reasonably accommodate his disability by permitting him to use marijuana in accordance with the Compassionate Use Act. The Supreme Court rejected these claims, holding that the Act merely decriminalizes medicinal marijuana use under California state law and simply does not speak to employment law. The two dissenting justices accused the majority of “conspicuously lacking … compassion” and putting Californians with marijuana-alleviated symptoms to a “cruel choice” between a medically prescribed treatment and a job.81 The dissenters argued that the FEHA itself required accommodation where, as here, the employer’s objection was to off-duty conduct that did not affect the employee’s performance of essential job functions. The dissenters conceded, however, that the Compassionate Use Act could not establish a truly fundamental public policy, given the contrary federal law. Indeed, as a later Court of Appeal decision has stated, “Despite this broadly worded statement of intent, the CUA’s approach to the issue of medical marijuana was a relatively modest one: It provided immunity from prosecution for certain conduct that would otherwise be criminal.”82 DFEH disability regulations make clear that California employers need not accommodate the use of medical marijuana in the workplace and can enforce their drug use policies when employees test positive for marijuana.83 Any disciplinary focus must be on the violation of policy, however, and not on any underlying disability that the marijuana use may implicate. Finally, the Ninth Circuit recently confirmed that California employers are free to conduct suspicionless drug testing of new hires even if the test is conducted shortly after the employees begin working. However, an employer may face liability for failure to engage in an interactive process and failure to accommodate under FEHA if the employer is on notice that the applicant is disabled with doctor-approved medical use of legal substances, but rescinded the offer or terminated the employment because of the applicant’s failure to pass the preemployment drug test.84 6.3.5 The interactive process and reasonable accommodation The interactive process. In America generally, employers should follow an interactive process to ensure that they meet their duty to provide reasonable accommodation to an employee with a known disability who needs an accommodation to perform essential functions of a job. Failure to engage in that process is a problem if there was an available reasonable accommodation that the employer would have considered had the process been followed. In California it’s different. California employers often must follow the interactive process even if it turns out that no reasonable accommodation existed, and must initiate the interactive process when the employer learns about the employee’s disability and the potential need for accommodation—whether from a direct source, from observation, or from a third party.85 Indeed, California makes it unlawful in itself for an employer to fail to engage in a “timely, good faith, interactive process … to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known … disability.”86
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