Marijuana Patients Hobson’s Choice: Work or Medicate?

An employer may terminate an employee for his or her off-the-job marijuana use, even if the employee is authorized under state law to use cannabis medicinally, the Washington state Supreme Court ruled last week.

Off-the-job medical marijuana use does not bar firing: Wash. high court
via BusinessInsurance.com

The ruling stemmed from the case of a woman who suffered from migraines that caused chronic pain, nausea, blurred vision and sensitivity to light, according to court documents. She said conventional medications did not provide relief.

In June 2006, a doctor provided her a document authorizing marijuana possession for medical purposes, and about four months later TeleTech offered her a customer service job contingent on the results of a drug screening test.

The employer learned of her drug test results about the same time the plaintiff began training for the job and terminated her. The company’s drug-use policy does not make an exception for medical marijuana use, court records show.

… On appeal to the Washington Supreme Court, the woman argued that because the medical marijuana law explicitly does not require employers to accommodate pot use “in any place of employment,” it implicitly requires accommodation for use outside the workplace.

But eight justices agreed with lower courts and found that MUMA broadly protects a personal decision to use medical marijuana, but does not address impediments to doing so, such as an employer’s drug policy.

The case is Roe v. Teletech Customer Care Management LLC. The majority’s argument essentially comes down to this: “Washington courts have recognized that MUMA’s purpose is to protect the rights of qualifying patients to use medical marijuana in accordance with the advice and supervision of their physicians. … Washington court decisions do not recognize a broad public policy that would remove any impediment to medical marijuana use or impose an employer accommodation obligation.” You can read the Court’s decision here.

Though disappointing, the Court’s 8-1 decision upholding an employer’s right to arbitrarily discriminate against medi-pot users is frustratingly predictable. In 2010, the Oregon Supreme Court made a similar ruling in Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries, finding that an employee who uses marijuana in accordance with state law is nonetheless “engaged in the illegal use of drugs” and may be fired for his or her off-the-job conduct. And In 2008, the California Supreme Court ruled in Ross v. Ragingwire Telecom that: “California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.”

In short, the west coast Courts have issued patients a classic Hobson’s Choice: ‘Use your medicine in compliance with state law but don’t seek gainful employment,’ or ‘Work, but refrain from using the medicine that most effectively alleviates your pain and suffering.’ The ‘choice,’ of course, is really no choice at all. It’s discrimination — plain and simple.

Further, it remains painfully obvious — to virtually everyone but the Courts — that employers lack any legitimate justification to sanction anyone for their off-the-job use of cannabis, much less legally authorized patients. As NORML Outreach Coordinator Russ Belville recently blogged — in a story picked up by the Colorado Independent and other media outlets — rising rates in the number of legal marijuana users is not associated with increased incidences of workplace accidents. In fact, just the opposite result is shown to be true.

Finally, scientific studies have consistently reported workplace urine testing programs are a poor method for identifying employees who are under the influence, and do not significantly reduce job accident rates. Writing recently in the journal Addiction, Investigators at the University of Victoria in British Columbia reviewed 20 years of published literature pertaining to the efficacy of workplace drug testing, with a special emphasis on marijuana – the most commonly detected drug. They found: “[I]t is not clear that heavy cannabis users represent a meaningful job safety risk unless using before work or on the job; urine tests have poor validity and low sensitivity to detect employees who represent a safety risk; drug testing is related to reductions in the prevalence of cannabis positive tests among employees, but this might not translate into fewer cannabis users; and urinalysis has not been shown to have a meaningful impact on job injury/accident rates. … Urinalysis testing is not recommended as a diagnostic tool to identify employees who represent a job safety risk from cannabis use.”

So why are the courts still affirming one set of rules for pharmaceutical users and another set of rules for herbal cannabis patients?

Oregon Supreme Court To Medi-Pot Patients: You Are Second Class Citizens!

[Editor's note: This post is excerpted from this week's forthcoming NORML weekly media advisory. To have NORML's media advisories delivered straight to your in-box, sign up for NORML's free e-zine here.]

An employer may terminate an employee for his or her off-the-job marijuana use, even if the employee is authorized under state law to use cannabis medicinally, the Oregon Supreme Court ruled last week.

In a 5 to 2 decision, the Court determined that an employee who uses marijuana in accordance with state law is nonetheless “engaged in the illegal use of drugs” and may be fired for his or her off-the-job conduct.  Because marijuana remains classified as an illicit Schedule I drug under federal law and may not be legally ‘prescribed’ by a physician, the Court opined that employers should not be mandated to accommodate workers who engage in its use.

“[T]he Controlled Substances Act must authorize a licensed health care professional to prescribe or administer the controlled substance,” the majority determined.  “As noted, under the Controlled Substances Act, physicians may not prescribe Schedule I controlled substances for medical purposes.  … Because employee did not take marijuana under supervision of a licensed health care professional and because the authorization to use marijuana found in ORS 475.306(1) is unenforceable, it follows that employee was currently engaged in the illegal use of drugs and, as the commissioner found, employer discharged employee for that reason.”

Commenting on the Court’s decision, NORML Deputy Director Paul Armentano said: “This ruling isn’t about workplace safety; it’s about the Court upholding discrimination – plain and simple. It is absurd for the majority of the Court to argue that medical marijuana patients are allowed certain protections under state law while simultaneously arguing that these same patients lack the legal right to earn a living.”

Despite the Court’s ruling, the majority stated that the federal Controlled Substances Act does not preempt provisions of the Oregon Medical Marijuana Act that exempt patients’ possession, manufacture, or distribution of medical marijuana from state criminal liability.

Writing for the dissent, Justice Martha L. Walters opined: “I do not understand why, in our system of dual sovereigns, Oregon must fly only in federal formation and not, as Oregon’s motto provides, ‘with her own wings.’  Therefore, I cannot join in a decision by which we, as state court judges, enjoin the policies of our own state and preclude our legislature from making its own independent decisions about what conduct to criminalize.”

The Court’s decision overturned a previous decision from the Bureau of Labor and Industries ordering the employer to pay damages, and a Court of Appeals decision affirming that judgment.

In 2006, the Oregon Supreme Court similarly ruled (Washburn v. Columbia Forest Products, Inc.) that employers may fire workers for failing a company mandated drug test for marijuana, even if their use is authorized by state law.

In 2008, the California Supreme Court issued a similar decision (Ross v. Ragingwire Telecom), finding:  “California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.”

Full text of the Oregon Supreme Court decision (Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries) is available online at: http://www.publications.ojd.state.or.us/S056265.htm.

NORML’s Weekly Legislative Round Up

Below is this week’s summary of pending state legislation and tips to help you become involved in changing the laws in your state.

NEBRASKA: In a major victory for pot-law reformers, Legislative Bill 844 – which sought to recriminalize minor marijuana possession offenses in Nebraska — has been amended. Under current state law, first-time marijuana possession offenses are punishable by a non-criminal citation and a $100 fine. As introduced, LB 844 sought to impose a sentence of up to 90 days in jail for first-time marijuana offenders. As amended, the proposal would increase the maximum fine for pot possession to $300, but would not impose criminal sanctions. The bill now awaits action from full legislature.

CALIFORNIA: California’s Dale Gieringer submitted written testimony opposing Assembly Bill 2389, which seeks to require drug testing for recipients of certain state benefits or cash assistance. Gieringer will testify before the Committee on Human Services in opposition to the proposal at a legislative hearing on Tuesday, April 1. Gieringer will also testify at an upcoming hearing in support of AB 2279, which seeks to end state employment discrimination against qualified medical cannabis patients.

HAWAII: The House Judiciary this week passed an amended resolution (HCR 49) that seeks to allow for state-qualified farmers to provide medical cannabis to authorized patients. The Senate Judiciary is expected to vote imminently on a separate measure, House Bill 2675, which seeks to establish a legislative task force to study issues pertaining to the legal supply of medical marijuana for authorized patients.

And finally, in non-state related legislative news, several newspaper columnists and editorial boards this week have endorsed Massachusetts Congressman Barney Frank’s pending legislation to strip the federal government of its authority to arrest responsible cannabis consumers. You can read examples here, here, and here.