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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