MARIJUANA LAW UPDATES BY WILLIAM J. JUDGE, JD, LLM, ENCOMPASS COMPLIANCE CORP.
New Litigation Focus in the Era of Medical Marijuana
“ Laws are a dead letter without courts to expound and define their true meaning and operation.” —Alexander Hamilton1
M
arijuana laws impacting workplace drug testing are relatively new. Most of the
twenty-nine states that have medical marijuana laws and the nine with personal use laws have not yet been interpreted by state or federal courts. Since 1996, when the first medical
marijuana law was passed in California,2 employers have won virtually all court challenges to adverse employment actions taken against employees testing positive for marijuana, even though the employee involved was an approved medical marijuana patient.3 But, beginning May 23, 2017, that all
started to change. In 2017, there were three cases decided in favor of employees who were fired or not hired because of their admited drug use or because they tested positive for marijuana in an employer-required drug test. Each of these individuals had approved medical marijuana cards. Nonetheless, adverse employment action was taken. Te employees sued . . . and won. I predict that these three cases, some
still before the courts, are only the first of what is to come in litigation in the era of marijuana at work. Why should this be important to you?
Mainly because of the reason why these cases were decided as they were. Te approved use of marijuana under a state medical marijuana law was an issue in these cases, but it took a back seat to the focus on the underlying medical condition and whether the state’s disability discrimination laws had been violated. Clearly, there is a need to be concerned
about your state’s medical marijuana law and how it impacts you. But, employees may or may not find protection from the courts under the state’s medical marijuana
28 datia focus law.4 Tey are more likely to find protection
under the state’s disability discrimination laws. In fact, in two of the three cases in 2017, the courts looked at marijuana like any other “prescribed”5
underlying medical condition. Tis should also be important to you
because you must be ready to adjust your drug testing program (policy and procedures) according to changes that impact your business. Don’t just focus on the “shiny object”—the marijuana statute. Look at the real reason the employees in these three cases won. Here’s a hint— it wasn’t the marijuana! By understanding where the
litigation is going—the theories used and the arguments raised and accepted by the courts—employers may be better prepared for litigation in the era of medical marijuana.6
can be avoided altogether.
The Cases: In chronological order, here is a very brief summary of the three cases where employees have been successful:7
May 23, 2017: Rhode Island: Callaghan v. Darlington Fabrics Corporation, et al. On May 23, 2017, a Rhode Island Superior Court found that an employer had violated state law by refusing to hire an applicant for an internship because of her status as a medical marijuana patient and because her medical marijuana use would admitedly mean she was unlikely to pass the required pre-employment drug screen.8
Te
employer argued that the applicant was denied employment because she could not pass a drug test. Te Rhode Island Superior Court
vehemently disagreed with the employer. spring 2018 medication for the
Or maybe litigation
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