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The petitioners argued that the denial was arbitrary and capricious because the DEA ignored the scientific studies showing that marijuana is effective to treat various medical conditions. The DEA responded that studies showing marijuana’s safety and effectiveness as a medicine were not available and that experts had not reached a consensus on the issue.

The court ruled that the DEA’s action was not arbitrary and capricious. The petition requested that marijuana be classified as a Schedule III, IV, or V drug. However, under the CSA, drugs in those schedules must have a “currently accepted medical use.” The DEA’s regulations define “currently accepted medical use” to require, among other things, “adequate and well-controlled studies proving efficacy.” As required by the procedural posture of the case, the court deferred to the DEA’s decision that such studies do not exist.

Despite recent state activity purporting to legalize marijuana use for medical and recreational purposes, it appears that from a federal law perspective marijuana will remain a controlled substance that cannot be legally obtained, for now.

Photo credit: Sebastien Roche-Lochen Photography

After the passage of medical marijuana laws by several states, the DOT took the position that an MRO may not report a confirmed positive test for marijuana as verified negative based on information that a physician recommended that the test subject use marijuana to alleviate the symptoms of a debilitating medical condition. In October 2009, the DOT's Office of Drug and Alcohol Policy Compliance issued a Notice stating that it “want[ed] to make it perfectly clear” that its drug and alcohol testing regulations “do[] not authorize ‘medical marijuana’ under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.” The DOT emphasized that “marijuana remains a drug listed in Schedule I of the Controlled Substances Act” and that it “remains unacceptable for any safety-sensitive employee subject to drug testing under the [DOT’s] drug testing regulations to use marijuana.”

Not surprisingly, the DOT has responded similarly to the passage by Colorado and Washington of laws purporting to legalize marijuana use for recreational purposes. On December 3, 2012, the DOT's Office of Drug and Alcohol Policy Compliance issued a Notice stating that it “want[ed] to make it perfectly clear that the state initiatives will have no bearing on the [DOT’s] regulated drug testing program . . . [which] does not authorize the use of Schedule I drugs, including marijuana, for any reason. Therefore, [MROs] will not verify a drug test as negative based upon learning that the employee used ‘recreational marijuana’ when states have passed ‘recreational marijuana’ initiatives.” The DOT also took the opportunity to reiterate its position regarding medical marijuana use.

The bottom line is that applicants for and employees in safety-sensitive transportation positions will not be allowed to explain away a confirmed positive test for marijuana based on recreational or medical use purportedly authorized by state law.

Washington voters adopted the MUMA in 1998. It provides an affirmative defense to a physician authorizing the use of medical marijuana and to qualified patients and caregivers engaging in the medical use of marijuana who are accused of marijuana-related crimes in Washington. The law expressly provides that employers are not required to accommodate “any medical marijuana use in any place of employment….” In 2007, MUMA was amended to clarify that employers are not required to accommodate any “on-site” use of medical marijuana in the workplace.

Roe, who used a pseudonym in the case because use of medical marijuana remains illegal under federal law, had debilitating migraine headaches. Conventional treatments did not alleviate the pain, but marijuana did. In June 2006, a physician issued her a written authorization under MUMA to use marijuana for medical purposes, which she did. In October 2006, TeleTech, a business outsourcing company, hired Roe as a customer service representative. Roe’s job offer was contingent on a negative drug test. She informed TeleTech of her use of medical marijuana outside the workplace and subsequently failed the drug test, and the company fired her.

Roe filed suit against TeleTech, asserting that the company terminated her employment in violation of MUMA and wrongfully discharged her in violation of public policy. The trial court granted summary judgment in TeleTech’s favor, and the Washington Court of Appeals upheld the decision.

The Washington Supreme Court affirmed. Roe first argued that TeleTech violated the MUMA itself. But the court held that the Act unambiguously provided only an affirmative defense to a criminal marijuana charge, not a civil claim against an employer. The court explained that if the employer was not required to accommodate on-site medical marijuana use, it was not required to accommodate medical marijuana use off site, as Roe was asking it to do. Finally, the court noted that the fact that Roe used marijuana at home without being impaired in the workplace was irrelevant because regardless of Roe’s ability to do her job, the statute did not confer on her a right to sue her employer.

Roe then argued that even if TeleTech had not violated MUMA, the court should recognize a civil tort claim for wrongful termination in violation of public policy based on her discharge. Quoting MUMA, she urged that the public policy proclaimed by the law was that that “the medical use of marijuana by patients with terminal or debilitating illnesses is a personal, individual decision.” But the court held that the language of the MUMA “do[es] not recognize a broad policy that would remove any impediment to medical marijuana use or impose an obligation that employers accommodate such use, and that Washington patients have no legal right to use marijuana under federal law.”

Along with Ragingwire and Steel Fabricators, the TeleTech decision is the third in a string of appellate victories for employers in cases involving the termination of employment of employees for use of medical marijuana, whether or not on site and whether or not the employee is impaired during work. But any sigh of relief by employers may be premature:

• In the future, Washington medical marijuana users may seek to bring claims based on a recent change in MUMA that was not argued in Roe. Less than two months ago, Washington amended MUMA to provide expressly that the law does not require any accommodation of an employee’s medical marijuana use if the employer has a drug-free workplace policy. In the future, employees terminated for medical marijuana use by an employer lacking such a policy may render their discharges illegal under the revised statute. Employers that do not have drug-free workplace policies should consider implementing them to avoid falling prey to such a claim in the future.
• The highest courts in only 4 of the 15 jurisdictions (14 states and the District of Columbia) that have medical marijuana laws have ruled on any of the questions at issue in TeleTech. Courts in other states may reach contrary conclusions under their own laws. Some states, like Colorado, enshrine their medical marijuana law in the state constitution, a source of law that employees are likely to assert is deserving of greater deference than a statute.
• Stay tuned because any federal law developments may change the legal landscape in state courts. Medical and other use, possession and distribution of marijuana continues to violate federal law. New legislation recently introduced in Congress, if it ultimately becomes law, is likely to change this. If that happens, many states are likely to follow suit, creating new challenges for employers in addressing employment issues raised by the use of medical marijuana by prospective or current employees.
• There are other issues employers may confront even if state medical marijuana law does not create any employer liability for discharge for use of medical marijuana, for example:
  • Disabilities, serious health conditions, and genetic information of which the employer becomes aware because an employee discloses them in describing use of medical marijuana;
  • Government contracts requiring employers to observe drug-free workplace requirements; and
  • Occupational safety and health issues involving workers who use medical marijuana.
• Even wary employers may find their drug-free workplace policies jeopardized by managers who sympathize with colleagues who use medical marijuana. Such managers may create liability if they are insufficiently or inconsistently committed to enforcing their employer’s drug-free policies.
   

The long-term legal effects of medical marijuana in the workplace continue to be hashed out in elections, legislatures and courts. But at least for now, the Washington Supreme Court’s decision in Roe helps clear the air for employers in that state to exercise substantial discretion in enforcing their drug-free workplace rules.

For additional analysis on this development, see Littler ASAP "Washington Supreme Court Blunt in Ruling: No Claim for Wrongful Discharge Under State's Medical Use of Marijuana Act” by Dale L. Deitchler and Daniel L. Thieme.

Photo credit: Sebastien Roche-Lochen Photography

The court left open for another day two issues. One was whether federal law prohibited Oregon from immunizing criminal defendants from being prosecuted for possession, manufacture or distribution of marijuana under state law. The other was what level of proof was sufficient to show that a physician monitored or oversaw Scevers’ medical use of marijuana.

The analysis upon which the court relied and the result it reached in Emerald Steel are similar to rulings in other states with medical marijuana laws, including California, Montana, and Washington. Other state courts that address the issue are likely to follow suit.

Interestingly, two justices dissented in the Emerald Steel case. They argued that federal law did not require invalidation of the OMMA because the OMMA did not affect the enforcement of federal law and that under the U.S. Constitution, Oregon was free to adopt a different policy toward marijuana than Congress did. Although their views did not carry the day in the case, they may foreshadow some of the arguments that BOLI may make, should it decide to appeal the decision to the U.S. Supreme Court.

The Emerald Steel decision strongly supports employers across the country – in Oregon and the 13 other states that have some sort of medical marijuana law in place – to reject requests for accommodation of a disability based on the use of medical marijuana. Nevertheless, we recommend several steps to employers concerning the use of medical marijuana:

• Employers should review their policies to ensure they can—to the extent permitted by applicable federal, state and local law—discover, investigate, and respond appropriately to the illegal use of drugs by employees.
• Employers should not simply assume that every employee who asks for an accommodation involving the use of medical marijuana is currently using it. For example, an employee may be investigating treatment options without having used marijuana.
• Even when employees seek accommodations involving the use of medical marijuana, employers should engage in the interactive process in the same way they would do so with other employees seeking accommodation. Such employees may be qualified employees, and there may still be a duty to accommodate them with legal alternatives.
• Employers should carefully train managers to understand what the law is, what rules apply to their workplaces, and what the consequences are of violating them. There is much disinformation about medical marijuana, but the proliferation of state medical marijuana laws attests to the wide support for the limited use of marijuana for medical purposes. Some managers and other employees may know someone whom they believe has benefited from the use of medical marijuana. As a result, they may take actions or fail to take actions, that may undermine employer’s policies and expose those employers to civil or even criminal liability.
• If an employer that wants to make an accommodation based on an employee’s use of medical marijuana—even though it has no legal obligation to do so—the decision may affect how it conducts its drug testing program and how it provides accommodations to similarly-situated employees. Accommodating the employee may expose the employer to civil liability for, e.g., negligent hiring, supervision, or retention; violations of workplace safety rules; and violations of agreements with third parties to provide a drug-free workplace. That decision also may pose a risk to the organization or its managers of criminal liability. Accordingly, such an employer should first discuss with its legal counsel the serious ramifications of making such an accommodation.
 

This entry was written by Christopher Leh.

During oral argument, both parties discussed the Court’s ruling in Loder v. City of Glendale, a decision notable for its balance of individual privacy rights and employer drug testing policies. The Loder case proved to be significant in the outcome of RagingWire, as the Court reaffirmed that an employer’s interest in ensuring a drug-free workplace was legitimate “[i]n light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees — increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover . . . .”  The RagingWire decision concludes, “[t]he employer’s legitimate concern about the use of illegal drugs also led us in Loder to reject the claim that preemployment drug testing violated job applicants’ state constitutional right to privacy.”  Given this reaffirmation of California’s public policy permitting employers to test applicants for illegal drugs, Ross also lost his claim for wrongful discharge. 

While employers rejoice, the decision is a buzz kill for those hankering for a decision that would broaden the rights of workers who use marijuana for medicinal reasons in the 11 states that have taken steps to decriminalize the use of the drug for that purpose.  Ross’s supporters have vowed to seek legislative action to broaden state law employment protections for those who use marijuana medicinally.  Judge Kennard’s strongly worded dissent emphasizes that employers have a legal obligation to accommodate disabled employees’ use of legitimate prescription medications.  This is true even in cases where those drugs affect performance in a manner comparable to the use of marijuana.  This argument is likely to fan the flames of future efforts to seek workplace protections for those workers; however, it most likely will fail given the difference in status between lawful prescription durgs and marijuana, the possession of which remains illegal under federal law.

For a comprehensive discussion of the decision, see Littler's ASAP "California Employers No Longer Holding Their Breath:  Applicants Using Medical Marijuana May Be Denied Employment" by Rod M. Fliegel and Nancy N. Delogu.

RagingWire’s attorney argued that employers have an interest in ensuring that employees are not using drugs illegally, and should not have to tolerate off-work drug use by workers simply because state law considers such use lawful.  These arguments were persuasive in the lower courts, and several Justices participating in the oral argument appeared to agree that the federal-state law conflict posed a problem for employers.

Ross’s attorneys pointed out, however, that RagingWire had no obligation to drug test Mr. Ross under federal law, and that there was little risk that the Company could be held liable for accommodating his off-job drug use.  In addition, California public policy strongly supports an individual’s right to employment absent discrimination on the basis of disability, and further contains provisions protecting individuals’ rights to make basic decisions regarding their medical care.  Ross’ attorneys further argued that the California Constitution’s privacy protections also militated in favor of Ross, absent evidence that he was impaired by his marijuana use while at work.

Significantly, Ross’s advocates did not challenge an employer's right to conduct the drug test in the first place, and both agreed that the California Supreme Court's decision in Loder v. City of Glendale remains good law.  The Loder decision established that California employers may conduct workplace drug testing in circumstances that do not unduly intrude upon an individual's right to privacy.  The opinion discusses at length the various ways in which illegal drug use adversely affects employers, and concludes that attempts to detect such use may be tolerable incursions upon an employee's right to autonomy privacy.  The fact that medicinal use of marijuana is now technically not unlawful as a matter of California law begs the question of whether, and to what extent, employers must accommodate that use like any other prescription medication which may have adverse effects on an individual's behavior or job performance.

Ultimately, many of the questions raised by the Justices were not adequately addressed by Ross’s attorneys:  If the test is lawful under California law, and the drug use is arguably lawful under California law, what, if anything, must the employer do to accommodate such use?  Can permitting the off-duty use of marijuana ever be deemed a reasonable accommodation?  As a practical matter, RagingWire had not considered whether to accommodate Ross’s marijuana use, and neither side appeared willing to compromise its position regarding Ross’s right to use marijuana.  Interestingly, the attorneys for Ross agreed that an employee who came to work under the influence of drugs could be disciplined by his employer, but failed to explain the difference between a positive drug test and evidence of impairment.  If that line of reasoning is adopted, it may have the curious result of barring employers from refusing to hire individuals who use marijuana pursuant to the Compassionate Use Act, but permitting employers to discharge such individuals for testing positive after a workplace accident or other incident suggestive of impairment.

Ultimately, court-watchers came away with no clear sense of how the California Supreme Court might rule.  Given both parties’ support for the Loder case, however, it appears unlikely that the privacy analysis applied to workplace drug testing, which balances the needs of the employer against the privacy interests of the employee, will be revised.