Washington Court of Appeals Upholds Termination Where Medical Marijuana Use Caused Drug Test Failure
Note: On April 1, 2010, the Washington Supreme Court granted review of the Court of Appeals decision discussed in this entry. A final ruling on the case will be issued by the Washington Supreme Court at a later date.
A Washington Court of Appeals has ruled that Washington’s Medical Use of Marijuana Act (“MUMA”) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy. Click here to download a copy of the Court of Appeals Decision in Roe v. Teletech Customer Care Management.
Jane Roe (who did not use her real name because medical marijuana use remains illegal under federal law) sued Teletech for rescinding its employment offer after she failed a drug test required by Teletech’s substance abuse policy. She sought reinstatement and damages, alleging that she had been wrongfully terminated in violation of public policy since her marijuana use was legal under MUMA. The trial court granted summary judgment in favor of Teletech, and Roe appealed.
The Washington Court of Appeals, Division II affirmed the trial court’s dismissal of Roe’s case, stating, “MUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the Act." Rather, the Court held that MUMA merely protects qualified patients and their physicians from state (not federal) criminal prosecution related to the prescribed use of medical marijuana. The Court further held that when Washington’s voters passed MUMA through the initiative process, they did not intend to impose a duty on employers to accommodate employee use of medical marijuana. The lawsuit and appeal, handled for the employer by Stoel Rives attorneys Jim Shore and Molly Daily, is likely to be further appealed by Roe to the Washington Supreme Court.
The workplace implications of medical marijuana continues to be a developing area. If your company has employees in any state allowing the use of medical marijuana under certain circumstances (including Washington, Oregon and California), you should review your substance abuse policies and make certain that all local human resources personnel and drug test administrators know whether the company will consider an exception for medical marijuana usage. Currently, Washington employers do not need to accommodate medical marijuana usage by making an exception to an otherwise valid substance abuse policy. However, because of court rulings in other states interpreting their states’ disability laws and advocacy groups’ continued attempts to expand medical marijuana rights, employers should continue to exercise caution when dealing with requests for disability accommodation involving medical marijuana. If such an issue arises, consider consulting with legal counsel.
Yesterday the Department of Transportation (DOT) reinstated its rule that employers must conduct observed urination drug testing for all return-to-duty and follow-up tests for transportation workers in safety-sensitive positions. The new regulations will apply to workers in safety-sensitive positions in the aviation, motor carrier, rail, transit, maritime, and pipeline industries. Click here to read the DOT rule, which will take effect August 31.
This rule isn't new; as noted by the Stoel Rives World of Employment, the DOT issued the same rule a year ago. However, the D.C. Court of Appeals stayed implementation of the new rule until July 1 of this year, when it held that the rule was neither arbitrary nor capricious and did not violate employees' Fourth Amendment rights. Click here to read the court's decision in BNSF Railway Co. v. U.S. Department of Transportation.
Why the need for such strict scrutiny? According to the rule, observation is necessary "to allow the observer to check the individual for prosthetic or other cheating devices." Seriously. Such things do exist. The most famous is the Whizzinator, used by celebrities including actor Tom Sizemore. Now there's an endorsement. If you have employees that are subject to the new rule, just hope they don't suffer from shy bladder syndrome, or things are going to get really complicated.