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Medical marijuana in the workplace: What’s an employer to do?

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Trim manager Sebastian Marquez hangs freshly harvested medical marijuana on a drying rack at the River Rock Medical Marijuana Center in Denver, Colo. Employers should consider revising their substance abuse policies since Washington state allows both medical and recreational use.

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.

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 law protected Roe against criminal prosecution, it did not allow employees to sue when discharged for medical marijuana use.

To reach its decision, the Court concluded the following language of the law expressly allowed employers to terminate employment for marijuana use and stated:

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 a protected activity in the workplace.

However, since 2011, the political climate in Washington and the United States has continued to shift. Now, over 20 states allow medical marijuana use, and more than a half a dozen 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 often having to confront an increase in 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 either 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 an employer decides not to terminate an employee, but later a less prized employee tests positive, the employer could be questioned why this employee was terminated, when other employees were not terminated.

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. whistle blowing, filing a worker’s compensation claim, etc.), or that the termination decision was motivated by the employee’s age, gender, race, marital status, sexual preference, or other protected status.

As the use of marijuana increases, some employers may decide to re-examine their existing substance abuse policies. Some employers may consider halting tests for marijuana, or some may make exceptions for medical marijuana patients. However, for now, these are judgment calls for each employer based on the employer’s own circumstances.

Since Washington state law now allows medical and recreation use of marijuana, employers, with formal substance abuse policies, should consider revising their policies to specifically state that the use of marijuana is prohibited in the workplace.

Gil Sparks is Of-Counsel for Ogden Murphy Wallace, PLLC, and has over 26 years representing employers on employment and labor law matters and has over 16 years of senior human resources experience.