Wednesday, October 5, 2011

Workplace Practices On Medical Marijuana Use

Medical Marijuana Use: Employers Caught Between "A Rock And A Hard Place"

“Medical marijuana” refers to the use of marijuana as a physician-recommended form of treatment or therapy, often for pain management or to treat nausea caused by chemotherapy. Numerous states, including California (pursuant to the Compassionate Use Act) have legalized the use of marijuana for medicinal purposes. Of these states, California was the first state to legalize medical marijuana, and as a result since 2004, thousands of marijuana cards have been authorized. However, under federal law, specifically, the Controlled Substances Act, marijuana use is illegal, even for medicinal purposes. This has created a dilemma for employers trying to enforce workplace polices that prohibit illegal drug use, especially since medical marijuana users are not technically a protected class, although obviously the issue raises disability discrimination considerations. Thus, the question is, if an employer has a zero-tolerance policy on drug use, can an employee be terminated for using medical marijuana?

The California Supreme Court, in Ross v. Ragwire Telecommunications (2008) 42 Cal.4th 920, provided guidance for employers on this point by holding that an employer could terminate an employee who tested positive for marijuana even though the employee’s physician had prescribed the marijuana to treat the employee’s chronic back pain. The employee argued that he had a disability pursuant to the Fair Employment and Housing Act (FEHA). However, the Court disagreed, finding that employers do not have to accommodate an employee who is using marijuana for medicinal purposes. Specifically, the court noted that “Plaintiffs position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the Act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users. . . Instead of attempting the impossible, as we shall explain, 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.” This decision was a victory for employers who understandably had concerns about medical marijuana users performing their jobs safely while impaired by drugs.

However, the issue continues to plague employers as evidenced by the recent lawsuit filed by the American Civil Liberties Union (ACLU) against Wal-Mart. The lawsuit involves Wal-Mart’s termination of a Michigan (which permits the use of medical marijuana) employee whose physician certified that his illness qualified for medical marijuana use. In spite of this, Wal-Mart terminated the employee after he failed an on-the-job injury-related drug test. The employee suffers from a rare form of cancer in his nasal cavity and brain, and he uses medical marijuana to alleviate the daily pain. According to Scott Michelman, staff attorney with the ACLU, "Medical marijuana has had a life-changing positive effect for Joseph, but Wal-Mart made him pay a stiff and unfair price for his medicine. . .No patient should be forced to choose between adequate pain relief and gainful employment, and no employer should be allowed to intrude upon private medical choices made by employees in consultation with their doctors." Alternatively, as reported by CNN, Wal-Mart’s director of media relations, Lorenzo Lopez, asserted that "As more states allow this treatment, employers are left without any guidelines except the federal standard. . .In these cases, until further guidance is available, we will always default to what we believe is the safest environment for our associates and customers."

For California employers, although Ross v. Ragwire Telecommunications provides important guidance, the possibility of a claim for disability discrimination still lurks in the background. Perhaps the U.S. Supreme Court will have the final say.

BOBrien

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