The California Court of Appeal has rejected an employee's request to use prescribed marijuana as a reasonable accommodation of an alleged disability.  Unless or until the California Legislature or the electorate amends California law, it is lawful to deny employment to applicants who fail lawfully administered, pre-employment drug tests, even when the applicant uses marijuana legally under California's Compassionate Use Act of 1996.

The Court of Appeal analyzed the Fair Employment and Housing Act as well as the Compassionate Use Act and held that nothing in either law protected Ross: 

"Employers have legitimate interests in not employing persons who use illegal drugs. As recognized by the California Supreme Court, such use has resulted in, among other things, increased absenteeism from work, diminished productivity, greater health costs, and increased problems with respect to safety in the workplace.  Nothing in FEHA precludes an employer from firing, or refusing to hire, a person who uses an illegal drug.  Because the possession and use of marijuana is illegal under federal law, a court has no legitimate authority to require an employer to accommodate an employee's use of marijuana, even if it is for medicinal purposes and thus legal under California law.  If FEHA is to be extended to compel such an accommodation, that is a public policy decision that must be made by the Legislature, or by the electorate via initiative, and not by the courts.  Contrary to plaintiff's claim, permitting employers to fire, or refuse to hire, a person who exercises his or her statutory right under California law to use marijuana for medicinal purposes does not violate state policy created by the Compassionate Use Act."

Ross v. RagingWire Telecommunications, Inc.