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. 

Annual Construction Law Section Dinner and CLE

As a member (and past chair) of the governing council for the Construction Law Section of the Washington State Bar Association and with the immeasurable help of our firm’s cracker-jack legal assistant/paralegal and event organizer Laurel Barton,  I have initiated, organized and overseen the Section’s Annual Dinner/CLE program.  We completed our second event last week (February 26) and it was another rousing success.  This one was at Cutter’s Bayhouse in Seattle’s Pike Place Market.  Fifty one members of the Section signed up and a good majority of those attended to enjoy a social hour, dinner and a presentation good for one hour of CLE credit, all for the unheard-of low price of $50.

Our speaker was John Livengood of Navigant, a national construction consulting firm.  John is a Managing Director of Navigant’s Global Construction Practice and an experienced claims expert with more than 38 years of construction related experience.  He is a registered architect and an attorney experienced in construction litigation, project management, design analysis, and document preparation

Traveling from his office in San Francisco, John talked for more than hour about Schedule and Delay Analysis and Why Results Differ.  He started with an overview of the Critical Path Method (CPM) for project scheduling and then explained the four predominant ways to analyze schedule delays (as planned vs. as built; contemporaneous period analysis; retrospective Time Impact Analysis (TIA); and collapsed as built).  These methods are discussed in the Recommended Practice 29R-03 Forensic Schedule Analysis (2011) published by the Association for Advancement of Cost Engineering (AACE).  For each of the methodologies John explained both the benefits and the drawbacks and why they may not be suitable for all schedule conditions.  He concluded with some observations on why results differ, the most prominent reason being that the different methodologies measure delay impact in different ways.

Although the subject seems esoteric and complex, John was able to provide both an informative and entertaining overview.  The experienced construction lawyers in the audience were attentive to the very end and appreciated the useful knowledge they gained – especially since the talk followed a good meal and the chance to socialize with friends and colleagues.

 

Bob Olsen

Bob Olson has been practicing construction law in Washington State for over 35 years and is well versed in all phases of business and construction disputes. When he’s not practicing law, he is often riding his bike, playing some sport or traveling with his family. Click here to get in touch with him today.

SGFS Welcomes Rick Birinyi to the Team

We are very excited to welcome Richard Birinyi to our growing firm! Rick is an established bankruptcy attorney focusing mainly on creditor and debtor issues with over 30 years of experience to bring to the team.  We here at Schlemlein Goetz Fick & Scruggs couldn’t be more excited to have him on board with us.

Rick is a leader in Washington State’s bankruptcy law, having lent his talents to firms such as Schwabe, Williamson & Wyatt and Bullivant Houser Bailey. We feel lucky that he has decided to join us for this next chapter of his career. He is no stranger to creditor/debtor issues, corporate reorganizations, business transactions and complex commercial litigation. His expertise and dynamic personality will be a great asset to us as well as our clients.

Welcome to the team, Rick!

For more on Rick visit our website.