By Bryan A. Chapman, Esquire
Medical marijuana use is legal in approximately 33 states and the District of Columbia. In the District of Columbia, a licensed physician can recommend medical marijuana for conditions, such as: HIV, AIDS, cancer, glaucoma, conditions characterized by severe and persistent muscle spasms, such as multiple sclerosis; patients undergoing chemotherapy or radiotherapy, using azidothymidine or protease inhibitors, decompensated cirrhosis, Lou Gehrig’s disease, Cachexia or wasting syndrome, Alzheimer’s Disease, and seizure disorders.
In a state or locality where medical marijuana use is legal, can a registered medical marijuana user, with a recommendation from a licensed physician, be fired from their job for using medical marijuana during off hours to treat a debilitating medical condition? The answer is complicated.
State and local laws concerning the protection of registered medical marijuana users are quickly evolving across the country. The trend is to give registered medical marijuana users greater protection against being terminated by their employers. A registered medical marijuana user who is using medical marijuana to treat a debilitating medical condition may be entitled to a reasonable accommodation under some state and local laws.
WHAT EMPLOYEES NEED TO KNOW ABOUT D.C.’S MEDICAL MARIJUANA LAWS.
As of September 2019, the District of Columbia has a new law that protects District of Columbia government employees who are medical marijuana users. Act Number A23-0114 is called The Medical Marijuana Program Patient Employment Protection Temporary Amendment Act.
The Act states, “A public employer may not refuse to hire, terminate from employment, penalize, fail to promote, or otherwise take adverse employment action against an individual based upon the individual’s status as a qualifying [medical cannabis] patient unless the individual used, possessed, or was impaired by marijuana at the individual’s place of employment or during the hours of employment.”
The law does not apply to either employees in “safety sensitive positions” or to those who are required to undergo drug testing as a federal requirement.
Act Number A23-0114 specifically protects District of Columbia government employees but it does not protect District of Columbia private sector employees. Nationally, state and local laws do not protect public or private sector employees who: 1) use or possess marijuana during hours of employment, and/or 2) are impaired by marijuana during hours of employment.
In the past, an employer could terminate an employee who tested positive for marijuana. However, the current trend, in the law, is to protect employees who are registered users of medical marijuana due to a debilitating medical condition. This is particularly the case in localities and states where medical marijuana is legal and reasonable accommodation laws exist that specifically protect employees who are medical marijuana users.
Currently, the District of Columbia’s laws do not protect private sector employees who are medical marijuana users. Whitmere v. Wal-Mart Stores, Inc., 359 F.Supp. 3d 761, 778 (Dist. Court, D. Arizona 2019); Coles v. Harris Teeter, LLC, 217 F. Supp. 3d 185, 188 (Dist. Court. District of Columbia 2016) (“As the courts in those cases concluded, the District here can at most be said to maintain a public policy that decriminalizes and allows the consumption of marijuana for private medical reasons. That is a far cry from prohibiting employers from terminating such users.”) Furthermore, the Americans with Disability Act (ADA) does not protect medical marijuana users from termination by their employers either.
However, in light of Act Number A23-0114, which protects District of Columbia government employees who are medical marijuana users, one has to wonder whether the District of Columbia court, D.C. Superior Court, would determine that private sector District of Columbia employees, who are medical marijuana users, have similar protection. Filing a disability claim under the D.C. Human Rights Act may be the test.
- D.C. Health Medical Marijuana and Patients://dchealth.dc.gov/page/patients
- D.C. Health Medical Marijuana Program: Patient Applications https://dchealth.dc.gov/service/medical-marijuana-program-patient-applications
- D.C. Health Medical Marijuana: Patient Application Forms (Electronic)://dchealth.dc.gov/publication/medical-marijuana-patient-application-forms-electronic
- D.C. Health Medical Marijuana and Integrative Therapy://dchealth.dc.gov/service/medical-marijuana-and-integrative-therapy
- DC Medical Marijuana://www.marijuanadoctors.com/medical-marijuana/dc/
- Mayor Muriel Bowser signed an order on Tuesday clarifying legal protections for certain District employees who consume cannabis while away from the job. https://norml.org/news/2019/09/19/washington-dc-mayor-signs-order-expanding-workplace-protections-for-cannabis-consumers
- BARBER V. DISTRICT OF COLUMBIA – DEFENDING EMPLOYMENT RIGHTS OF A MEDICAL MARIJUANA PATIENT
Law Office of Bryan A. Chapman
Bryan A. Chapman, Esquire
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