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.
Usually when I get an employment lawsuit alleging "negligent infliction of emotional distress," I chuckle to myself and immediately begin drafting a motion to dismiss. However, a recent case out of the Washington Court of Appeals may indicate that NIED claims are not totally frivolous!
In Strong v. Wright, the plaintiff sued her former supervisor because he told "blonde jokes" (apparently plaintiff was blonde), made fun of her house, ridiculed her husband's job, and referred to her as a "bum mother" because she put her son in therapy. The plaintiff alleged that this treatment "caused her to vomit and to have anxiety attacks, depression, and heart palpitations." Really. Blonde jokes=heart palpitations.
The trial court granted the defendant's motion for summary judgment, reasoning that the claims were nothing more than a run-of-the-mill workplace dispute. The Washington Court of Appeals reversed, holding that the events went beyond a mere workplace dispute. One of the facts that helped the court reach this decision: the defendant stood so close to plaintiff while telling the blonde jokes that his spit would fly and hit her face, constituting an "assault" under Washington law.
What's the lesson here for employers? Even though none of the supervisor's conduct violated federal or Washington discrimination or harassment law (although the blonde jokes could be construed as race or national origin discrimination under Title VII), employers still need to watch out for boorish and demeaning workplace behavior. Courts appear willing to find a way--or even create a way--to continue policing the workforce. Lastly, whatever you do, DO NOT let your employees visit this website full of blonde jokes.