Marijuana and Employment: What is a truly “Green” Workplace in Washington

Washington State has been at the forefront in allowing access to marijuana for medical and, more recently, recreational purposes. See RCW 69.51A (Medical use of Marijuana Act or “MUMA”) and RCW 69.50 (Uniform Controlled Substance Act). These state laws have decriminalized marijuana possession and use. To be clear, this has not impacted federal law, which still categorizes marijuana as a schedule I controlled substance. See 21 U.S.C. § 801 et seq. Because of this, at least in part, Washington courts have refused to expand MUMA’s protections in other settings, including the workplace. In fact, the Washington State Supreme Court has expressly held that MUMA does not prohibit “an employer from discharging an employee for medical marijuana use.” See Roe v. TeleTech Customer Care Management LLC, 171 Wn.2d 736, 760 (2011). The Court in Roe also held that an employee terminated for authorized use of medical marijuana does not have any civil remedy against her former employer. Id. The Court cited language in the MUMA statute, which only allows “patients with terminal or debilitating illness to legally use marijuana when authorized by their physician,” and it accomplishes this goal by giving these patients an affirmative defense to criminal prosecution. Id., at 758. In fact, a number of state and federal courts have ruled that federal agents, housing authorities, and employers can take adverse actions against individuals who use medical marijuana even when authorized by state law. See Raich v. Gonzales, 545 U.S. 1 (2005); Barber v. Gonzales, 2005 U.S. Dist. LEXIS (2005); Assenberg v. Anacortes Housing Authority, 268 Fed.Appx. 643 (2008); Ross v. Ragingwire Communications, 42 Cal. 4th 920 (2008).

Medical Marijuana, pc iStock
It should be noted that, as part of his dissent in Roe, the late Justice Chambers disagreed with his colleagues “exacting” examination of MUMA and argued the law created a public policy basis for an aggrieved employee to pursue a wrongful termination claim. Justice Chambers’ dissent indicates there may be room for argument and reconsideration in the future. In other words, it is impossible to predict how changing social views and the nascent marijuana industry might influence future decisions by Washington Courts. For practical purposes, employees and employers should pay close attention when considering marijuana issues in the workplace. While Roe holds that termination for marijuana use is lawful, a plaintiff might prevail on a similar claim if they could demonstrate an underlying disability motivated the termination. This is because aggrieved employees are only required to show a protected class (such as a qualifying disability) was a substantial factor leading to an adverse action; not necessarily the only factor. See Scrivener v. Clark College, 334 P.3d 541 (2014). At the same time, employees must tread with care. Even though State law now permits marijuana use for medical and recreational purposes, there are no bright line restrictions precluding an employer from taking adverse action. Washington is an “at-will” state where marijuana use could constitute grounds for termination of employment under Roe.
If you have any questions about your potential risks as an employee or employer, you should contact an attorney to better understand your options.

 

IMG_0906Attorney Mark Davis has been a practicing trial attorney in Washington since 2007 and has been honored with several awards.  He has litigated a variety of employment and commercial disputes, such as workplace issues involving discrimination, hostile environments, retaliation, and wage violations (to name a few). When Mr. Davis is not hard at work for his clients, he can be found playing a game of ping pong in our office rec center or spending time with his wife and young family.  These posts are meant to show employees some of the rights they have in the workplace and some possible pitfalls to avoid that come up in employee rights cases.  Please seek legal counsel for your own specific situations, cases are unique and have their own sets of circumstances to consider.  To get in touch with Mr. Davis contact our office by phone: 206-248-8100 or by email: info@sgfslaw.com, or visit or website for more information.