Medical Marijuana/Cannabis and Employment Considerations

The Washington State Legislature is currently considering ESSB 5073.  See the post below, dated March 21, 2011, for further discussion of the major effects of the bill.  ESSB 5073 is modeled upon a California measure providing regulation of the growth, processing, and distribution of medical marijuana.  The measure would change the designation from “marijuana” to “cannabis.”  Its major provisions include:

1.         Provisions for rule-making and licensing by the Department of Agriculture;

2.         Extending the protections from criminal prosecution to dispensaries, processors, and growers; and

3.         Permitting local jurisdictions to enact “reasonable” zoning and licensing provisions.

RCW 69.51A.060(4) currently provides:

(4)        Nothing in this chapter requires any accommodation of any onsite medical use of marijuana in any place of employment… or smoking medical marijuana in any public place….

Nothing in the new legislation proposes amendment of this section.

In 2009, Division II of the Washington Court of Appeals decided Roe v. TeleTech, 152 Wn. App. 388, 216 P.3d 1055 (2009).  The case involved a claim of wrongful termination against an employer who revoked a conditional offer of employment.  The perspective employee failed a drug test, but provided proof to the employer that she was following a health professional’s recommendation to use medical marijuana.  The employer’s policy required a pre-employment drug test and made an employee with a “confirmed positive drug test … ineligible for employment with the company.”  TeleTech, 152 Wn. App. at 392.  Following dismissal of her law suit by the Superior Court, the prospective employee, Jane Roe, appealed to the Court of Appeals, asserting an implied cause of action under the Medical Use of Marijuana Act (MUMA) and a tort action on policy grounds.  The Court of Appeals upheld the dismissal, finding that the structure of Initiative 692 was clearly aimed at creating a defense from criminal prosecution and not at extending workplace protections.  The appellant argued that since the provisions of the MUMA provided that “on-site ” use of medical marijuana was not protected, MUMA implied that off-site use was protected.  The Court of Appeals disagreed.  It applied the same reasoning in dismissing her tort action based on public policy grounds. 

Jane Roe, the prospective employee, has appealed and the case was argued to the State Supreme Court in February.  A decision is pending. 

Public employers and others with federally-required drug-free workplace policies should pay particular attention to the court’s holding.  Under federal law, marijuana is a Schedule I controlled substance which, by federal finding, has no valid medical use.  While five separate challenges to this classification have been brought in the last thirty years, all have been rejected by the Second Circuit.  Challenges that the federal criminal provisions are unconstitutional as applied to medical marijuana users have been rejected by the U. S. Supreme Court.  Gonzalez v. Raich, 545 US 1, 125 S. Ct. 2195 (2005). 

Scott Snyder of our firm will be making presentations at the Washington State Association of Municipal Attorneys (WSAMA) Spring conference, the Local Public Governmental Institute at its May convention, and at the Civil Service Convention in September.  These presentations will update the attendees regarding any enactments by the legislature, a decision by the State Supreme Court, as well as the impact of various federal statutes such as CDL provisions, the Drug-free Workplace Act and the Americans With Disabilities Act.  This is a rapidly developing field of law with a few surprises, no doubt, in store.

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