September 30, 2009
September 30, 2009
A new decision from the Washington Court of Appeals, Roe v. Telletech Customer Care Management LLC, provides a victory for employers who resist employees’ requests to accommodate their medical marijuana use. The case involved an employee who, after only two weeks of work, was terminated once she informed management that she was authorized by the State of Washington to use marijuana to treat her migraine headaches. The company was unwilling to make an exception to its substance abuse policy, and terminated her when the results of a standard pre-employment drug test came back positive for marijuana.
The court answered two questions on appeal. First, did the Washington State Medical Use of Marijuana Act (MUMA) imply a civil cause of action to sue an employer who refuses to accommodate employee use of marijuana? Second, for purposes of Washington’s wrongful discharge tort, does MUMA express a strong public policy in favor of medical marijuana use such that an employer who terminates an employee for off-duty medical marijuana use can be liable?
The Court answered, “No” to both questions. On the first question, the court found that although MUMA contains language suggesting that its intent was broader than merely protecting Washington citizens from criminal prosecution for medical marijuana use, it was not so broad as to protect an employee from discharge for being a medical marijuana user. In particular, the employee argued that language in MUMA stating that, “Nothing in this chapter requires any accommodation of any medical use of marijuana in any place of employment,” should be construed to mean that an employer is required to accommodate the medical use of marijuana by an employee off-site and off-duty . The court disagreed with this overly technical interpretation, and found that the statute did not create a right for an employee to file suit against her employer. For essentially the same reasons, the court rejected the plaintiff’s wrongful discharge theory.
This is a good decision for Washington employers, but, the state of the law on accommodation of medical marijuana use in Oregon is in flux. Because marijuana remains illegal under federal controlled substances law, there is no duty to accommodate medical marijuana under the federal Americans with Disabilities Act. For Oregon employers though, there is conflicting authority on whether employers have an obligation to accommodate medical marijuana use under the Oregon disability statute. The Oregon Supreme Court and the Oregon Court of Appeals have each had the opportunity to address the question in the past three years, but have declined to do so. The Bureau of Labor and Industries (BOLI), however, has taken the position that a temporary employee who sought to be hired on a permanent basis but was not because of his medical marijuana use, presented substantial evidence of disability discrimination and failure to reasonably accommodate when there was evidence that he had performed his assignments capably. The Court of Appeals’ review of the BOLI determinationwhich declined to reach the merits of the reasonable accommodation claim and instead held that the employer had waived any objection to BOLI’s findingis presently on appeal to the Oregon Supreme Court.
Until the Oregon Supreme Court provides more guidance on an employer’s duty to accommodate medical marijuana use, BOLI is likely to continue with its past interpretation. If you’re an Oregon employer, and an employee requests that you accommodate his or her “disability” by making an exception to your substance abuse policy to allow the use of medical marijuana, what should you do? Follow your usual procedures for considering reasonable accommodations. Is the employee disabled? Is there another accommodation that would be reasonable and effective? Does the employee work in a safety-sensitive position? Would accommodating the applicant or employee using medical marijuana create an undue hardship? Although addressing medical marijuana issues presents employers with challenges, the reasonable accommodation process still allows the employer to choose the accommodation, as long as it is effective.
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