said he never used marijuana at work or came to work under the influence. Te court sided with Wal-Mart, stating
that the Michigan statute only provided a potential defense to criminal prosecu- tion or other state action; the law did not restrict private decisions by Michigan busi- nesses, and did not repeal the general at- will employment rule. Te court’s concern was that “accepting the plaintiff’s argument could prohibit any Michigan business from disciplining employees who used mari- juana in accordance with the statute—even though the statute specifically did not require employers to accommodate the medical use of marijuana in the workplace. Te court came to a similar conclusion in the Washington case, Roe v. TeleTech Customer Care Management LLC, 257 P.3d 586 (Wash. 2011). Ms. Roe was pre- scribed marijuana for migraine headache symptoms, and only used it in her home, although she acknowledged that it could affect a patient some time aſter use. She was offered a customer service position, contingent in part on a drug test. She in- formed TeleTech of her medical marijuana use before taking the drug test, began job training, and was then terminated because of her marijuana-positive result. Ms. Roe sued for wrongful termination in violation of the Washington medical marijuana law. Her employer won on summary judgment, with the court finding that the state medi- cal marijuana law only provided users and physicians with a defense against criminal prosecution, did not create a private cause of action for wrongful termination against private parties, and did not rise to the level of being a public policy exception to the at-will employment doctrine. Te Washington statute specifically
stated that it did not require accommoda- tion of medical marijuana use in any “place of employment,” and the court reasoned that if the law intended to protect off-site use, such as Ms. Roe’s use at home, it would have spelled out exceptions for certain oc-
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cupations and specified permissible levels of impairment. Colorado courts have addressed the
medical marijuana issue in the unemploy- ment benefits case, Beinor v. Industrial Claim Appeals Office of the State of Colorado and Service Group, Inc., 262 P.3d 970 (Colo. Ct. App. 2011). Mr. Beinor was terminated for a positive drug test resulting from use of medical marijuana, and argued that the denial of unemployment benefits violated his rights under the Colorado medical marijuana law. Te state constitution disqualified an employee from benefits if he or she tested positive for the presence of “not medically prescribed controlled sub- stances,” including marijuana, in his or her system “during work hours.” Te court said it was proper to deny unemployment ben- efits because the state law only protected Mr. Beinor from criminal prosecution—it did not protect him from the employer’s zero-tolerance policy. Te state law did not “require any employer to accommodate the medical use of marijuana in any workplace,” and the court noted that its ruling was con- sistent with other courts’ interpretations.
Recreational use— A tougher case for employees? Tese recent cases demonstrate that even
if a state law allows medical marijuana use, employers do not necessarily have to do so. Also, based on the courts’ support for employer drug policies in these medical use cases, a terminated employee would likely face a more difficult challenge making a case for wrongful termination based on rec- reational use. At this time, even with new state laws permiting recreational marijuana use, drug-free workplace policies appear to be on solid ground. ❚
Sarah Ashby serves as Associate General Counsel for Psychemedics Corporation. She has ten years of experience in civil litigation, FDA regulation, and government investigations.
datia focus 35
Even at this early stage, the continuing federal prohibition and certain medical marijuana cases provide guidance to the drug testing industry.
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