Marijuana Patients Hobson’s Choice: Work or Medicate?

An employer may terminate an employee for his or her off-the-job marijuana use, even if the employee is authorized under state law to use cannabis medicinally, the Washington state Supreme Court ruled last week.

Off-the-job medical marijuana use does not bar firing: Wash. high court

The ruling stemmed from the case of a woman who suffered from migraines that caused chronic pain, nausea, blurred vision and sensitivity to light, according to court documents. She said conventional medications did not provide relief.

In June 2006, a doctor provided her a document authorizing marijuana possession for medical purposes, and about four months later TeleTech offered her a customer service job contingent on the results of a drug screening test.

The employer learned of her drug test results about the same time the plaintiff began training for the job and terminated her. The company’s drug-use policy does not make an exception for medical marijuana use, court records show.

… On appeal to the Washington Supreme Court, the woman argued that because the medical marijuana law explicitly does not require employers to accommodate pot use “in any place of employment,” it implicitly requires accommodation for use outside the workplace.

But eight justices agreed with lower courts and found that MUMA broadly protects a personal decision to use medical marijuana, but does not address impediments to doing so, such as an employer’s drug policy.

The case is Roe v. Teletech Customer Care Management LLC. The majority’s argument essentially comes down to this: “Washington courts have recognized that MUMA’s purpose is to protect the rights of qualifying patients to use medical marijuana in accordance with the advice and supervision of their physicians. … Washington court decisions do not recognize a broad public policy that would remove any impediment to medical marijuana use or impose an employer accommodation obligation.” You can read the Court’s decision here.

Though disappointing, the Court’s 8-1 decision upholding an employer’s right to arbitrarily discriminate against medi-pot users is frustratingly predictable. In 2010, the Oregon Supreme Court made a similar ruling in Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries, finding that an employee who uses marijuana in accordance with state law is nonetheless “engaged in the illegal use of drugs” and may be fired for his or her off-the-job conduct. And In 2008, the California Supreme Court ruled in Ross v. Ragingwire Telecom that: “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.”

In short, the west coast Courts have issued patients a classic Hobson’s Choice: ‘Use your medicine in compliance with state law but don’t seek gainful employment,’ or ‘Work, but refrain from using the medicine that most effectively alleviates your pain and suffering.’ The ‘choice,’ of course, is really no choice at all. It’s discrimination — plain and simple.

Further, it remains painfully obvious — to virtually everyone but the Courts — that employers lack any legitimate justification to sanction anyone for their off-the-job use of cannabis, much less legally authorized patients. As NORML Outreach Coordinator Russ Belville recently blogged — in a story picked up by the Colorado Independent and other media outlets — rising rates in the number of legal marijuana users is not associated with increased incidences of workplace accidents. In fact, just the opposite result is shown to be true.

Finally, scientific studies have consistently reported workplace urine testing programs are a poor method for identifying employees who are under the influence, and do not significantly reduce job accident rates. Writing recently in the journal Addiction, Investigators at the University of Victoria in British Columbia reviewed 20 years of published literature pertaining to the efficacy of workplace drug testing, with a special emphasis on marijuana – the most commonly detected drug. They found: “[I]t is not clear that heavy cannabis users represent a meaningful job safety risk unless using before work or on the job; urine tests have poor validity and low sensitivity to detect employees who represent a safety risk; drug testing is related to reductions in the prevalence of cannabis positive tests among employees, but this might not translate into fewer cannabis users; and urinalysis has not been shown to have a meaningful impact on job injury/accident rates. … Urinalysis testing is not recommended as a diagnostic tool to identify employees who represent a job safety risk from cannabis use.”

So why are the courts still affirming one set of rules for pharmaceutical users and another set of rules for herbal cannabis patients?

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