Getting high? Don’t expect to get hired – Medical marijuana and employment

Some states’ prohibitions on medical marijuana use have gone up in smoke, but retention of employee drug testing policies has left users at an all time low. The Washington State Supreme Court voted 8-1 that employers may fire or refuse to hire employees who do not pass a drug test despite their legal use of marijuana for medical purposes. 

In 1998, Washington enacted the Medical Use of Marijuana Act (MUMA), codified at 69.51A RCW. This Act allowed reprieve from criminal sanctions for physicians prescribing medical marijuana and for patients using medical marijuana. In the case at hand, a woman was hired by the employer, TeleTech Customer Care Management, LLC, conditioned upon her passing a drug test. Upon taking the test, she informed the administrator that she used marijuana for medical reasons in her home. When TeleTech received the positive results, the woman was terminated. 

The employee argued that MUMA creates an implied cause of action against the employer for firing her for her positive drug test, and she also argued that it violates public policy. 

The court decided that the employer had the right to terminate the employee on these grounds. First, MUMA did not created an implied cause of action against the employer because voters did not intend the Act to protect the patient from anything beyond criminal sanctions. MUMA, therefore, did not place any restrictions on employers’ ability to administer and enforce rules regarding drug testing. Thus, any use of marijuana, whether legal or illegal, inside or outside the workplace, could result in job termination. The court reasoned that the voters would not have intended “such a sweeping change in employment practices.” 

Second, an employee at will can be terminated for any reason at any time unless it is against public policy. In order for this decision to be against public policy, the voters would have to have intended that the policy protected beyond criminal sanctions, which was not the case here. 

Overall, MUMA does not create a complete safe harbor for medical marijuana users, and employers may still subject employees to drug test and take adverse employment action based on their results. 

 

Photo credit: Chuck “Caveman” Coker

Comments

[Alison]

Just a quibble with the headline: Most medical marijuana patients don't use enough marijuana to get high. The amount needed for medical treatment is less than the amount needed to feel a high. One more reason why it's absurd that employers are taking issue with a legal, doctor-recommended activity.