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 who are medical marijuana users, but it does not protect private sector employees or federal employees who are medical marijuana users.  Nationally, 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.  The Americans with Disability Act (ADA) does not protect medical marijuana users and declares marijuana an illegal substance.

However, the current trend, in some state and local courts, is to protect employees who are registered users of medical marijuana due to a debilitating medical condition.  This is particularly the case in states and localities 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.  A private sector employer could terminate an employee who failed a drug test for marijuana, even if the employee is a medical marijuana user.  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.”)

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 a District of Columbia court, applying local laws, could determine that private sector District of Columbia employees who are medical marijuana users have similar protection.

Bryan A. Chapman, Esquire

bchapman@baclaw.com

www.baclaw.com

202 508-1499

Retaliation For Whistleblowing: Public Employees Have First Amendment Protections – 42 U.S. Code § 1983 (Municipal Liability)

42 U.S. Code § 1983 (Freedom of Speech – First Amendment) – Municipal Liability

Municipal employees are protected against retaliation for speaking up about government wrongdoing.  To establish a prima facie case of retaliation under 42 U.S.C. § 1983, a plaintiff must show “(1) that they engaged in a protected activity; (2) that the employer took an adverse employment action against them; (3) that a causal connection existed between the protected activity and the asserted adverse action.”  King v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003)

Under the First Amendment, a public employee has a qualified right to speak on matters of public concern.

  1. A public employee has to be speaking as a citizen and not as part of his or her official duties.
  2. A public employee’s speech must be on a matter of public concern.
  3. In order to establish municipal liability, a public employee’s speech must result in an adverse employment action (harassment, denial of promotion, demotion, deprivation of benefits, suspension, termination, etc.).

Public employees have First Amendment protections.  Pickering v. Board of Education, 391 U.S. 563 (1968)

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”  42 U.S.C. § 1983

Bryan A. Chapman, Esquire

www.baclaw.com

 

 

“Mixed Motive” standard eases the burden of proving discrimination

Adverse actions, such as, workplace harassment and terminations, often occur due to a blend of discriminatory and non-discriminatory motivations.

For instance, an African American employee gets into an altercation with a white employee.  The African American employee is terminated but the white employee is retained.  Both employees have comparable work records and are equally to blame for the altercation.  In this example, the race of the African American employee could be “a motivating factor” in his or her termination.

A race discrimination claim could advance under a “mixed motive” theory.  Plaintiff prevails simply by proving that his or her race was “a motivating factor.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Elements of a “Mixed Motive” Theory:

  1. Plaintiff is a member of a protected group (race, sex, national origin, religion, etc.) and suffered some sort of adverse employment action.
  2. Protected status was “a motivating factor” in the decision.

“[A]n unlawful employment practice is established when the complaining party demonstrates that…[protected status (not including retaliation)] was a motivating factor for any employment practice, even though other factors also motivated [and indeed may have caused] the practice.” [Sec. 107 of the Civil Rights Act of 1991]

In Desert Palace v. Costa, 123 S. Ct. 2148 (2003), the U.S. Supreme Court concluded that plaintiffs could use direct or circumstantial evidence to make the showing necessary to merit a mixed-motive jury instruction.  “[I]t is sufficient for the [plaintiff] to demonstrate that the employer was motivated to take the adverse employment action by both permissible and forbidden reasons…” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004).

Bryan A. Chapman, Esquire

www.baclaw.com