“Can I Be Fired for Using Medical Marijuana?”

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.

ISSUE:

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.

 CURRENT STATUS:

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.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

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D.C. Sees Latest Test Case for Employees Seeking “Reasonable Accommodation” for Off-Duty Medical Marijuana Use

The American Civil Liberties Union (ACLU) filed suit last week in the D.C. Superior Court on behalf of Doretha Barber, a sanitation worker with the D.C. Department of Public Works, who claims that she was denied reasonable accommodation and placed on an indefinite leave of absence after disclosing that she is a medical marijuana card-holder under the District’s medical marijuana program.  Specifically, Ms. Barber alleges that she suffers from degenerative disc disease which causes her debilitating back pain and for which she was recently prescribed medical marijuana for off-duty use only.  When Ms. Barber requested a temporary transfer to a clerical position during the fall leaf raking season as an accommodation of her disability, she was purportedly denied the transfer, and after she disclosed that she possessed a medical marijuana card, she was allegedly placed on an unpaid leave of absence and told that she could not resume her duties as a sanitation worker until she successfully passed a drug test (which she would inevitably fail due to her medical marijuana use) because she was working in a “safety sensitive position.”

The District’s actions appear to be in response to a new D.C. law providing employment protections to D.C. government employees who are lawfully enrolled in a medical marijuana program.  This new law, which is pending Congressional approval but is expected to take effect October 31, 2019, would prohibit the D.C. government from taking any type of adverse employment action against individuals participating in a medical marijuana program, unless they were working in a “safety sensitive position.”  Barber has argued that the D.C. Public Works recently characterized all sanitation workers as “safety sensitive” positions, notwithstanding the fact that she does not operate a vehicle or operate any heavy machinery.

Unlike other employees who have unsuccessfully attempted to seek federal employment protection under the Americas with Disabilities Act (ADA) due to the fact that marijuana remains an “illegal drug” under the Controlled Substance Act (CSA) and the ADA, Ms. Barbar becomes the latest in a recent trend of employees seeking to utilize state or local anti-discrimination laws as a means of requiring their employers to provide “reasonable accommodation” of their off-duty medical marijuana use.

As many of our Blunt Truth readers may recall, a New Jersey Court of Appeals recently revived a funeral director’s medical marijuana disability discrimination suit in Wild v. Carriage Funeral Holdings.  In that case, which is set to be heard by the New Jersey Supreme Court this fall, the court held that while New Jersey’s Compassionate Use Medical Marijuana Act does not require accommodation of medical marijuana use, New Jersey’s Law Against Discrimination might require an employer to provide reasonable accommodation and overturned the lower court’s dismissal.

The ACLU seemingly seeks to extend this case law to D.C. with this new lawsuit in an attempt to seek new employment protections for medical marijuana users – particularly for those in the private sector in D.C. where employers are currently not prohibited from taking employment action against those using marijuana for medical reasons consistent with D.C. law.  While it remains to be seen how this new lawsuit will be resolved in the courts, it serves as yet another cautionary tale for employers who maintain blanket policies prohibiting any type of off-duty marijuana use or who otherwise implement “zero tolerance” drug testing policies.

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