Employers Foggy on Medical Marijuana

One of Washington’s courts of appeals has ruled that residents fired for using medical marijuana cannot sue their former employer.

The case came from a Kitsap woman who got a job at TeleTech in East Bremerton. “Jane Roe” was fired in 2006 for failing a drug test despite telling the company she was a legal medical marijuana user under state law.

After a Kitsap judge sided with the company, the court of appeals took up the issue, examining specifically whether Washington’s Medical Use of Marijuana Act, approved by voters in 1998, would allow such suits.

Thirteen states, including Washington, allow certain patients to receive recommendations from a doctor for medical marijuana. More may be on the way.

But in her decision, appellate judge Christine Quinn-Brintnall, said the voters’ approved initiative only gives medical pot patients the ability to defend themselves from criminal charges in court, and has no implications for employers.

“It is clear from a common sense reading of (the Medical Use of Marijuana Act’s) plain language that the voters did not intend to impose any duty on private employers to accommodate employee use of medical marijuana,” she said.

Washington’s courts may have brought clarity on the issue, but the rest of the country is still feeling hazy, according to an article in the National Law Journal.

Here’s an exert of the article, by Tresa Baldas:

“It has really come onto everyone’s radar screen,” said Danielle Urban of the Denver office of Atlanta’s Fisher & Phillips. “I’m getting calls from employers saying, ‘I have an employee who tested positive for medical marijuana. What can I do? Can I fire that employee?'”

Her answer? It depends.

Urban said that under federal law, employers are not prohibited from taking adverse actions against someone who tests positive for marijuana. But Colorado permits medical marijuana, and another state law says it’s illegal for an employer to fire someone for engaging in legal, off-duty behavior.

And then there’s the Americans With Disabilities Act to consider. Under the ADA, an employee fired for using pot for health reasons could file a discrimination lawsuit.

“It’s a gray area to know what you can do,” Urban said. “But I think it’s still risky to just fire someone for using it.”

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