Pubdate: Mon, 28 Feb 2011
Source: Seattle Times (WA)
Copyright: 2011 The Seattle Times Company
Contact:  http://seattletimes.nwsource.com/
Details: http://www.mapinc.org/media/409
Author: Jonathan Martin
Bookmark: http://www.drugsense.org/cms/geoview/n-us-wa (Washington)
Bookmark: http://www.mapinc.org/find?253 (Cannabis - Medicinal - U.S.)

CAN LEGAL USE OF MEDICAL MARIJUANA GET YOU FIRED?

State Supreme Court to Decide

Washington voters approved the use of medical marijuana, but state 
law is murky on whether workers can be fired for legally using pot.

Among the questions left unanswered by Washington's medical-marijuana 
law: Can legal use of medical marijuana get you fired?

Thirteen years after voters approved its use, that question is likely 
to be answered by the Washington Supreme Court, which heard a test 
case on the issue last month.

It involves a woman fired by a Bremerton call center in 2006 because 
she failed a pre-employment drug test but had a valid authorization 
from a doctor.

The woman, identified in court by the pseudonym Jane Roe, used 
marijuana at night to treat migraines. The call center, Teletech 
Customer Care, offered no evidence that the use impaired her ability to work.

Michael Subit, Jane Roe's Seattle attorney, argued before the state 
high court that such use is implicitly protected because voters 
legalized it. "It would flabbergast the average voter to think, 'I've 
been given this right but can fired for it anyway,' " he said.

Courts in other states, including Oregon and California, have ruled 
in favor of businesses in similar cases.

Washington business groups are watching the Jane Roe case closely, 
anxious that the court potentially could define medical-marijuana use 
as a disability and therefore protect patients from firing.

"There's only so often that we want Washington to be an outlier, to 
appear to be less competitive because we put obligation on employers 
that they wouldn't face elsewhere," said Timothy O'Connell, a Seattle 
employment lawyer speaking on behalf of the Association of Washington Business.

Citing a recent letter from Idaho's governor seeking to woo local 
businesses, O'Connell said, "Do we want the governor of Idaho to have 
another paragraph to send to employers here?"

"A Little Nervous"

The initiative passed by voters in 1998 included a sentence stating 
that it did not require "any accommodation of any medical use of 
marijuana in any place of employment."

The Legislature amended it in 2007 to say "any on-site medical use." 
But the law remained silent about use outside work, leading to 
uncertainty about the intent.

The issue most commonly arises in pre-employment drug testing. Many 
employers also conduct drug tests for cause -- such as obvious 
impairment -- and after accidents or car crashes.

A 2006 survey by SHRM, a national association of human-resources 
managers, found that 84 percent of companies drug-test new employees; 
nearly 40 percent do random testing.

Locally, several big employers -- including Microsoft and the 
University of Washington -- don't routinely drug-test new hires 
unless the jobs are "security-sensitive" or involve driving. Other 
big employers, including Boeing, do screen. Federal contractors are 
required to ensure drug-free workplaces.

Rich Meneghello, a longtime employment lawyer in Portland, said 
companies with clear drug policies will prohibit use of marijuana 
because it is illegal but may exempt prescription drugs.

"Employers across the country have now made a distinction between 
prescription drugs and medical marijuana," he said. "Employers just 
get a little nervous about" marijuana because of concerns about 
liability and lost productivity.

Such a distinction leads medical-marijuana advocates to howl about a 
double standard.

But Washington's Department of Employment Security treats medical 
marijuana the same as a prescription drug. If an employee files for 
unemployment benefits based on being fired for a dirty drug test, and 
there is no evidence they were high at work, the state usually will 
approve the claim, said Matt Buelow, a policy manager for the agency.

"In this state," he said, "medical marijuana has been legalized 
through the voter process. Because it's legal in this state, as far 
as we're concerned, it's like a prescription. For someone to be 
denied benefits, there has to be willful misconduct."

Courts Favor Business

As the medical-marijuana movement has advanced throughout the 
country, employment protections haven't always followed. Rulings from 
the California Supreme Court in 2008 and Oregon Supreme Court in 2010 
both upheld the right of employers to fire employees for use.

And a federal-district court in Michigan last month upheld Wal-Mart's 
firing of an employee -- a legal user under Michigan's 
medical-marijuana law -- when he failed a drug test administered 
after an on-the-job accident.

The trend is troubling, said Kris Hermes, a spokesman for Americans 
for Safe Access, a national medical-marijuana advocacy group. Several 
states that recently passed medical-marijuana laws, including Rhode 
Island and Arizona, have employment protections, but most of the 15 
states allowing its use do not, he said.

"We hear reports all across the state of instances of employment 
discrimination, and the remedy is extremely limited," Hermes said.

A sweeping bill introduced this legislative session in Olympia 
included employment protection. But that provision was stripped out 
as the bill -- which would legalize and regulate dispensaries and 
commercial grow operations -- advanced through the state Senate.

The fact that the employment protections were included in the bill 
shows that the current law does not contain them, said James Shore, a 
Seattle attorney who argued for Teletech before the state Supreme 
Court last month.

"If one is seeking to create workplace rights, the Legislature should 
put it out front for the voters, so people know what it's about," he 
said. "The initiative passed by the voters was never intended to 
create workplace rights."

The Jane Roe case began in 2006, when the woman, then a married 
mother of two in her early 20s, began having severe migraines. In an 
interview, she said she tried medications that "made me whacked out 
of my mind."

Small Doses

The woman, who declined to be identified for this story to protect 
her children and her future work prospects, said she never had used 
marijuana before she turned to it as medicine. After obtaining an 
authorization from a clinic specializing in medical marijuana, she 
began taking small doses -- often with tinctures, a marijuana-infused 
alcohol -- before sleep, and never in front of her children. The 
migraines, she said, "largely disappeared."

She already had worked for Teletech -- a Colorado-based firm that 
handles customer service for Sprint from its Bremerton facility -- 
once before, and applied again knowing she'd have to pass a drug 
test. She said she offered to show the company her doctor's note, but 
the offer was declined.

In court documents, the company said its contract with Sprint 
required drug testing and makes no exception for medical marijuana.

The woman was pulled out of her training class after a week and fired 
Oct. 18, 2006.

"Very Humiliating"

"It was very humiliating for me," she said. "I'm not ... some 
dope-smoker pot lady. I'm a good mom."

She lost in trial court, and the Court of Appeals sided with 
Teletech, saying the state's medical-marijuana law only gives a 
defense against criminal charges. She now waits for the Supreme 
Court, which often takes months to decide complex cases.

Meanwhile, she earned a four-year degree in hospital administration 
and has worked at firms that don't do pre-employment screening. If 
necessary to land another job, she said she would stop using medical 
marijuana -- and suffer the health consequences. But she said she 
shouldn't have to.

"People shouldn't have to choose between their health and their 
employment for such a valid reason as medical marijuana," she said. 
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MAP posted-by: Richard Lake