Medical marijuana protection is unlikely under California fair housing laws. In Ross v. Ragingwire (2008) 42 Cal. 4th 920, the California Supreme Court held that the FEHA does not protect a fired employee who failed a drug test even though he was also a qualified patient under California’s Compassionate Use Act. The Court held the Compassionate Use Act was primarily to protect persons with a medical need for marijuana from criminal prosecution and not as a broader protection in other contexts. Furthermore, the court stated that “[n]othing in FEHA precludes an employer from firing, or refusing to hire, a person who uses an illegal drug” even though in this instance the conduct was illegal only under federal law. (Ross v. Ragingwire (2008) 42 Cal. 4th 920.
Further, so long as the shadow of asset forfeiture hangs over a landlord, it would not be a reasonable accommodation for a tenant’s disability to allow onsite marijuana possession and use when that violates federal law and may trigger the possible loss of the landlord’s real property.