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Marijuana, jobs and the law

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In 2011, the Washington State Supreme Court, in Roe v. Teletech Customer Care Management LLC, ruled that employers could terminate employees who tested positive for marijuana, even when their use occurred outside of the workplace and was for medical reasons.

In Teletech, the company rescinded its conditional offer of employment to Jane Roe, after Roe failed a pre-employment drug test. Roe then filed suit for wrongful termination, claiming her use of marijuana was for medical reasons and protected by Washington’s Medical Use of Marijuana Act (the “Act”).

Roe suffered from debilitating migraine headaches that resisted treatment, and her doctor advised her that the potential benefits of marijuana likely outweighed the health risks. The trial court dismissed Roe’s lawsuit, and the Washington State Supreme Court affirmed. The Supreme Court found that while the Act protected Roe against criminal prosecution, it did not allow employees to sue when discharged for medical marijuana use.

To reach its decision, the Supreme Court concluded the following language of the Act expressly allowed employers to terminate employment for marijuana use: “Nothing in this chapter requires any accommodation of any on-site medical use of cannabis in any place of employment, in any school bus or on any school grounds, in any youth center, in any correctional facility, or smoking cannabis in any public place or hotel or motel.”

The court also found no public policy grounds on which to permit lawsuits. To the court, the Act’s language was clear: medical marijuana use is not protected activity in the workplace.

In a dissenting opinion, Justice Tom Chambers in Teletech argued that permitting employers to terminate employees for medical marijuana use was inconsistent with the Act’s purpose, namely that “humanitarian compassion necessitates that the decision to authorize the medical use of marijuana by patients with terminal or debilitating illnesses is a personal, individual decision, based upon their physician’s professional medical judgment and discretion.”

In Chambers’ opinion, Roe was exactly the sort of person the Act intended to protect.

To date, Chambers’ argument has not altered Washington law. Employers may terminate employees for marijuana use. However, since 2011, the political climate in the United States has continued to shift. Twenty-two states now allow medical marijuana use, and six states have medical marijuana laws pending. Additionally, Washington and Colorado have now legalized both the medical and recreational use of marijuana.

Marijuana use remains illegal under federal law.

In light of the current political and legal climate surrounding marijuana use, some employers are more often confronting the issue of employee marijuana use. When skilled, good workers test positive or are otherwise found to be using marijuana, employers can be left with a dilemma. They can terminate the employee and lose the worker, or retain the employee.

Of course, if an employer has a set policy that requires termination or other discipline, the failure to follow the policy can lead to other issues. If, later in time, a less prized employee tests positive, the employer could be questioned if this employee is terminated, when other employees suffered no similar punishment. The affected employee could claim the employer cited marijuana use as a pretext to terminate (or otherwise discipline) the employee for unlawful motives, such as in retaliation for the employee engaging in protected activity (e.g. whistleblowing, filing a worker’s compensation claim, etc.), or motivated by terminated worker’s age, gender, race, marital status, sexual preference, or other protected status.

If the use of marijuana increases, some employers may have to reexamine their existing drug policies. And, some may consider halting tests for marijuana, or making exceptions for medical marijuana patients. For now, however, these are judgment calls for each employer based on the employer’s own circumstances.

Brian A. Walker represents businesses and individuals in commercial, business, employment, and real estate related litigation and transactions from the Wenatchee office of Ogden Murphy Wallace PLLC.