If Medical Marijuana Is Legal, Why Are Employees Getting Fired for Using It?

Medical MarijuanaFollowing a state Supreme Court ruling earlier this month, workers in the state of Washington who use medical marijuana to treat pain, nausea and other medical conditions can be legally fired should they fail a company mandated drug test.

The ruling is the third of its kind in recent years testing whether medical marijuana laws, which permit possession, growth and distribution of marijuana for medical purposes, can protect workers who use the drug during non-working hours.

State courts in neighboring Oregon and California both have reached similar decisions, determining that laws shielding patients from using medical marijuana don't extend to the workplace.

The Washington case was brought by a woman -- known in court documents as "Jane Roe," to shield her from prosecution under federal laws that classify marijuana as illegal -- who was fired from her job at a customer service firm in 2006 after she failed a drug test.

Roe told her employer that she used marijuana prescribed by her doctor to treat debilitating migraines, but the company fired her a week later for failing the drug test, a condition for employment.

Her attorney argued that the state's medical marijuana law, which voters approved in 1998, extended broad protections to users of the drug to protect them from exactly the kind of action taken against Roe.

But by a 8-1 majority, state Supreme Court judges disagreed, writing in their decision that the law doesn't provide workers who use medical marijuana with recourse to challenge their dismissals.

"We, of course, think they got it wrong," says Kris Hermes, spokesman for Americans for Safe Access, a medical-marijuana users advocacy organization.

Hermes says that the trio of state-court rulings affects "at least hundreds of thousands if not over a million" workers, who have a legitimate medical need to use marijuana.

Sixteen states and the District of Columbia have laws that allow medical marijuana to be used legally to treat ailments. Five of those states have no protections for workplace discrimination against patients, either by virtue of their laws or by litigation in the courts.

The remaining 11 states either have implicit protection, where the law only mentions on-the-job consumption or impairment (Colorado, Hawaii, Michigan, Montana, New Jersey, New Mexico and Vermont), implying that workers can't be fired for use that occurs outside of the workplace, or explicit protection (Arizona, Delaware, Maine and Rhode Island), according to the ASA.

State laws that permit medical marijuana use can put employers in a difficult position, since they may have to enforce federal laws regarding drug use or have employment policies based on federal law. As far as Uncle Sam is concerned, marijuana is equivalent to LSD or synthetic heroin, The Wall Street Journal noted last year.

Employers can fire, or refuse to hire, employees for using the drug without running afoul of the Americans With Disabilities Act or any other federal anti-discrimination statute, Christopher Kuczynski, assistant legal counsel with the U.S. Equal Employment Opportunity Commission, told the newspaper.

The risk of job loss that now faces medical marijuana users in Washington is well known to Peter O'Neal. Three years ago, the 43 year old was fired from his job as an assistant manager at a Walgreens drugstore in Northern California after the company learned he used medical marijuana to treat several ailments, including major depression and bipolar disorder.

After discovering his marijuana use, O'Neal, who had a card that allowed him to get medical marijuana via prescription, was given an ultimatum by the company: Either enter a drug rehab program or quit his job. O'Neal chose to go to rehab but soon resumed smoking marijuana after he began feeling poorly and he was subsequently fired.

Walgreens was within its right to do so because of a 2008 ruling by the California Supreme Court that permits employers to fire or refuse to hire workers who use medical marijuana. A bill that sought to reverse the court's decision passed both houses of the legislature later that year but was vetoed by then-Gov. Arnold Schwarzenegger.

In testimony before a state Senate committee to once again take up the bill earlier this year, O'Neal described his experience as humiliating. "I was scolded like a little child for using medical cannabis," he told lawmakers.

O'Neal now relies on state disability payments, although the $1,100 he receives each month is insufficient, he says. So he's looking for part-time employment, permissible under California law, provided he doesn't earn too much.

Should employees be fired for using medicinal marijuana?
Yes1 (33.3%)
No1 (33.3%)
It depends1 (33.3%)

He hopes to land a job at a medical marijuana dispensary as a "budtender," essentially a customer service representative who can help patients find the right strain of cannabis to help them treat their medical symptoms.

Despite setbacks in states such as California, Oregon and Washington, Hermes remains optimistic about wider adoption of laws protecting workers who use medical marijuana.

"The court rulings, though conservative, are a dying gasp of the opponents' fight on this issue," he says. The trend now among states, including Delaware and Arizona -- both of which legalized medical marijuana use this year -- is to explicitly recognize the employment (and housing) rights of patients.

"I think that trend is a positive sign that we're moving in the right direction," Hermes says.

Next: The Green Rush: Behind the Growing Medical Marijuana Industry

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My daughter can't dress herself or feed herself due to the debilitating effects of Multiple Sclerosis. Marijuana has been hugely successful in treating her anxiety, appetite, pain and depression. Anyone who tries to stand in her way will have to face me her Mother, and I don't care WHO you think you are! Only idiots think pot is harmful, and those idiots are holding up my daughters ability to get treatment. If you don't think smoking pot is right, then don't smoke it, I don't like alcohol but its still legal and FAR more dangerous then the most potent strain of a plant that can grow on God's green earth without any chemical help from man. Lets start making sense instead of always showing our stupidity.

April 20 2013 at 5:00 PM Report abuse rate up rate down Reply

Does he have a reason he chose a non-FDA-approved "medication" when there is a list of approved and proven medications already out there for both depression and bipolar disorder? And I have to ask, are depression and bipolar disorder enough to warrant $1100 a month in disability? Get a life!

June 29 2011 at 2:35 PM Report abuse rate up rate down Reply
2 replies to Danny's comment

You have a valid question there Danny, but YES-MAJOR depression and bipolar disorder can be so debilitating that one cannot function as a productive member of society, much less make themeslf get out of bed, perform proper hygiene to themself, clean their home, or become social. They can become suicidal(hence the word 'major' in front of depression) and in some cases depending on what type of bipolar he has, in a manic state he can suffer from hallucinations and dlusions-yes, from bipolar, not only people with schizophrenia have that. Also, if you have ever tried taking any anti-psychotic medications which are prescribed for bipolar, not just schizphrenia, they cause horrible side effects. They can cause Parkinson like symptoms permanently, cause major weight gain, increase your risk for diabetes, and cause diabetes in some cases. There are a number of other horrible side effects these drugs cause, so if Marijuana works for him, from a Doctor who prescribes it to him, then why not. Is he supposed to attempt suicide, then be let out of one of our "amazing" mental health care facilities onto the street? Or should he get a measly 1k per month and atleast be content enough to not wanna go through life wanting to die, and possibly have delusions and hallucinations? It makes me sick that people think mental health is not as important as other conditions. If he had tourrette's syndrome, or multiple sclerosis and were being prescribed marijuana, would you say the same thing? I doubt it. Take some time to learn about mental health before you judge. Mental disabilities can be extremely hard to deal with, Also, consider the fact that even though the FDA approves many medications, some of them have intolerable side effects. Just because the FDA approves it, doesn't mean it's good for you. Take a look at fast food, how many people are dying from that? Yeah it' OK in moderation, but you can't always argue with your Doctor because you have horrible side effects from your medication(i.e., diabetes), that medication may not work at a lower dose. There aren't THAT many great medications out there for mental illness, I know, I have taken many. They are horrible. I'd rather feel suicidal or be delusional sometimes than deal with the side effects. If pot works, then hey, why not use it if you can actually BE a productive member of society and WORK? This guy obviously wants to work.

July 20 2011 at 1:25 AM Report abuse rate up rate down Reply

Danny stop showing your ignorance. Those medications are very dangerous and can cause all kinds of side effects like suicide. I have worked in forensics psychology for over 25 years, pot works nice and natural. You need to get a life and stop commenting on the lives of others who you know nothing about. Come help me carry my disabled daughter, help her shower, get dressed and then spoon feed her and then we'll talk about your vast knowledge of drugs.

April 20 2013 at 5:04 PM Report abuse rate up rate down Reply

I was in house lawyer for a manufacturing company. We tested for drugs and alcohol. We did not fire. We suspended. Our reasons had to do with safety in the use of machinery. We suspended people who used valium, a perfectly legal medication. Safety is an issue. I personally think that the calming effects of marijuana may be considered for high stress situations. People have to take responsibility and not operate autos or machines where injuries occur.. I personally think that the elderly should be permitted to use marijuana at will, just not drive. One can burn up a pot of food on the drug, likewise while using alcohol. There are too many good kids in prison for marijuana while alcoholics walk among us, endangering us.

June 26 2011 at 8:57 PM Report abuse rate up rate down Reply

I'd much rather have my brain surgeon high on pot than be on the oxycontin merry-go-round. You can be on heroine, (oxycontin) or worse, out of the drug and dopesick, and not be fired. Makes no sense. Except that you buy the oxy's at Walgreens.

June 26 2011 at 6:38 PM Report abuse rate up rate down Reply
Beware the Finch

Ironic that Walgreens, a company selling all sorts of "legal" drugs, whould fire someone who uses a drug to treat their medical issues. I guess once they begin selling (and profiting) from the sale of weed they will support employees who test positive for it. Do you suppose they would fire someone who tested positive for legitimately used a drug sold by Walgreens?

June 26 2011 at 6:07 PM Report abuse rate up rate down Reply


June 26 2011 at 3:21 PM Report abuse rate up rate down Reply

Nixon had no clue ...nor do any of them suited idiots in congress today.Pot grows from the earth and no chemicals are needed or added-just pure old sunshine!!!.....alcohol and tobacco are chemically induced -can you make sense out of this? You do not have to legalize it-you must Decriminal it and ...JUST LET IT BE!!!!!!!!

June 26 2011 at 3:19 PM Report abuse rate up rate down Reply

Thats why people who take pain meds are on disability, no one needs them trying to get to work under the influence, much less endanger the customers, co-workers or themselves if they manage to get there.

June 26 2011 at 11:41 AM Report abuse rate up rate down Reply

Get all the oxycodine you want with no repurcusions.Get morphine and all kinds of narcotics your boss won't say a thing. Reefer ! You smoked a joint or ate a brownie your fired. Only in America does this makre sense.

June 26 2011 at 10:00 AM Report abuse +3 rate up rate down Reply

Who is anyone to tell me I can not take the one medication to treat my pain of MS? It is cronic and disabling! Can you tell a diabetic they can't take Insuline? Get real, people!!

June 26 2011 at 9:33 AM Report abuse +2 rate up rate down Reply

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