Following 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.
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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.
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