Must an Employer Accommodate?
1998: Washington passes the Medicinal Use of Marijuana Act (MUMA)/Medical Cannabis: RCW 69.51A
◦ Passed with 59% of the vote.
◦ Permits health care professionals to “authorize” marijuana for medical purposes
◦ Creates an affirmative defense to criminal prosecution for patients and their primary caregivers
◦ Employers not required to accommodate “any onsite use of medical marijuana.”
2003: Seattle passes Initiative 75
◦ Mandated adult possession of marijuana would be the lowest priority for law enforcement in the city.
◦ Effectively decriminalized possession for personal use.
2012: Initiative 502
◦ Supporters gathered 340,000 signatures
◦ Submitted to State Legislature for approval or
◦ Referral to voters on November state ballot
PROVISIONS:
◦ Removes state law prohibitions against producing and selling marijuana.
◦ Marijuana subject to licensing and regulation by Liquor Control Board.
◦ 25% tax on marijuana sales, revenue dedicated to health care.
◦ DUI laws amended to include THC blood content.
Prominent Supporters of I-502
◦ Washington State Democratic Party
◦ Spokesman Review (Spokane) newspaper
◦ Rick Steves – Travel Guru
◦ Salvador Mungia – immediate past president of Washington State Bar Association
◦ John McKay – former US Attorney for Western Washington under President Bush
Part of a larger and growing campaign to end the “War on Drugs”
◦ De-criminalize marijuana
◦ Favor treatment over incarceration for use of harder drugs
Washington State at forefront of change
14 states and D.C. have medical marijuana laws
California: Mendocino County directed sheriff to stop confiscating marijuana and start working with growers to license and regulate
WeGrow: California retail store started in Oakland dedicated to selling marijuana growth supplies.
Dubbed “Weed-Mart”
Marijuana is illegal under federal law (21 U.S.C. § 841)
◦ Schedule I controlled substance
High potential for abuse;
No currently accepted medical use in treatment in USA (FDA cannot test the medical benefits/risks of Schedule I drug)
◦ Federal government can regulate marijuana grown in, sold in, and consumed in the same state
◦ Marijuana is an illegal, Schedule I drug in Washington.
(RCW 69.50.204(c)(1))
Federal Government effectively shut down the Mendocino County program and weGrow
◦ Did not file a single criminal prosecution
◦ Did not seek an injunction in court
All it took was a letter.
United States Department of Justice United States Attorney Melinda Haag Northern District of California
Marijuana is a controlled substance under federal law.
DOJ will not devote limited resources to prosecuting individual users of medical marijuana (e.g., cancer patients)
Large scale production and sale is illegal.
Anyone associated with this is subject to criminal and civil liability including: producers, sellers, investors and state and local government employees.
US Attorneys in Spokane and Seattle wrote to Gov.
Gregoire in 2011 about I-502:
I-502 authorizes conduct “contrary to federal law . . . Accordingly, the Department could consider civil and criminal legal remedies regarding those who set up
marijuana growing facilities . . . Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law. In addition, state
employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA.”
Does an employer have to accommodate an employee who legally uses medical
marijuana?
Test case: Roe vs. Teletech
◦ Washington State Supreme Court
◦ Decided June 9, 2011
FACTS: Roe was an adult female who suffered
debilitating migraine headaches that caused her to be unable to work or care for her children. “Authorized”
medical marijuana in compliance with MUMA and found relief. Used only at home in evenings. Offered job at Teletech contingent on negative drug test. She acknowledged receipt of drug policy, disclosed that she took medical marijuana and offered to provide copy of medical authorization.
FACTS (cont.):
- 10/5: Roe took drug test
- 10/10: Roe started training, supervisor learned of
positive drug test. Supervisor checked with corporate headquarters and determined that the drug policy made no exceptions for medical marijuana
- 10/18: Terminated
ISSUES:
1. Does MUMA provide a private cause of action
against an employer who terminates an employee for authorized medical marijuana use?
2. Does MUMA express a clear public policy that employees may not be discharged for lawful use of medical marijuana?
Plaintiff’s Arguments:
1. MUMA protects employees from the denial of the “privilege”
of employment.
RCW 69.51A.040(1): Any person meeting the requirements
appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions.
2. MUMA specifically provides that employer need not
accommodate medial marijuana use “in any place of employment.”
By implication, employer must accommodate use outside the work place (i.e., at home).
Employer’s Arguments:
1. MUMA does not provide employment protections to medical marijuana users or a private cause of action for wrongful
discharge.
2. Federal Law precludes MUMA’s authorization of medical marijuana use.
3. MUMA has a narrow purpose: to provide an affirmative defense to users and physicians charged with violating state drug laws.
Supreme Court: Unanimous for employer
Reasoning:
◦ MUMA does not prohibit employer from discharging an employee who is authorized user.
◦ “Right or privilege” limited to context of criminal proceedings not private litigation.
◦ MUMA explicitly states that employer’s not required to
accommodate in work place (“benefit” of evening use at home continued through work day)
◦ Public policy mandate in statute giving rise to wrongful discharge claim must be clear—here, MUMA not clear and use is a violation of federal law
After Roe v. Teletech, is the door now shut on mandated employer accommodation?
Disability accommodation not directly addressed by Roe.
ADA: Federal Law
Washington Law Against Discrimination
Washington State Human Rights Commission
Based on these cases, and the fact that federal law prohibits the possession of marijuana, the Washington State Human Rights Commission will decline to investigate any claims of
discrimination involving the use of medical marijuana. This does not preclude an
individual from filing a case in state or federal
court.
Seafreeze Cold Storage (Arbitration Hearing: 12/11)
Arbitration can’t be cited in other legal proceedings.
Facts: forklift operator terminated for positive drug test based on home use of marijuana.
Arbitrator Ruling:
◦ Under union contract, just cause required to terminate.
◦ Employee’s use was at home.
◦ No evidence of impairment.
◦ No written drug policy.
◦ No just cause for termination.
Way to limit rights to employee off site use.
Written policy
Explain when testing may occur
Chain of custody of sample (outsource?)
◦ Compare: Ryan Braun’s MLB suspension appeal
Confidentiality an absolute
Discipline specified
Consequences for refusal to be tested
Effective July 22, 2011
Attempt to amend MUMA to add employment protections was rejected.
Intended to expand rights; create dispensaries.
Most new provisions vetoed by Gov. Gregoire.
New addition re employment: “Employers may establish drug-free work policies. Nothing in this
chapter requires an accommodation for the medical use of cannabis if an employer has a drug-free work place.”
Washington Law Against Discrimination (RCW 49.60)
Washington State Human Rights Commission:
◦ Drug and alcohol addiction is considered to be a
disability. Casual drug users or “social drinkers” are not considered to be disabled.
◦ Employees who are in, or have been in, drug or alcohol treatment programs are protected under WLAD.
◦ Current users of illegal drugs are not protected.
Do’s and don’ts for employers (per WHRC):
◦ You may ask about current drug or alcohol use in application or interview.
◦ Don’t ask if applicant is an addict or in rehab.
◦ Engage in interactive process if employee reveals addiction and requests reasonable accommodation.
◦ No need to allow illegal drug or alcohol use on job.
◦ Reasonable accommodation usually satisfied by allowing time off to get treatment or attend meetings.
◦ Enrolling in treatment won’t insulate employee from discipline if employee violated a work-related rule or policy that was
applied consistently to everyone.
FACTS: Female employee notified employer she suffered from bipolar disorder and was on medication. Told
employer and co-workers that she was struggling with medication issues that may influence her moods.
Supervisor met with her to discuss performance improvement plan. Employee cried, swore at supervisor, threw the plan across the desk and slammed the door. Back at cubicle, she kicked and threw things.
Co-workers told supervisor they were concerned to work with her and requested she not be allowed back. Employer
terminated her because of conduct at the meeting.
ISSUE: Is conduct (angry outburst) that is related to a
disability (bipolar disorder) part of the disability? If so, is the conduct a basis for termination?
HOLDING: “Conduct resulting from a disability is part of the disability and not a separate basis for termination."
Because the plaintiff’s violent outbursts were arguably
symptomatic of her bipolar disorder, the violent outburst was protected by law as "part and parcel of her disability."
Court limited its holding:
◦ Employee must still show that he or she is “qualified” for the position.
◦ ADA allows employer to raise a “business necessity” or “direct threat” against discrimination claim in certain situations.
◦ Employer may also raise the defense that the proposed reasonable accommodation—tolerating the misbehavior—
poses an undue burden.
(1) Even as states liberalize marijuana laws, no court has yet held that employer must tolerate use of illegal drugs (on or off premises).
(2) The rules may change if marijuana is removed from Schedule I controlled substances in federal and state statutes.
(3) Alcohol and drug addiction is a disability and employees seeking treatment are protected and entitled to that reasonable
accommodation.
(4) Conduct that results from disability may be part of the disability.
(5) Threats of violence are not protected even if the threat is the result of a disability.
