Te Company presented five arguments


related to the anti-discrimination issue raised by Noffsinger, all of which the Court found “meritless.”5


Notable for this


discussion, the Company argued that it is exempt from PUMA’s anti-discrimination provision because, as a federal contractor, the federal Drug-Free Workplace Act6 (DFWA) “allows for an exception if the discrimination is required by federal law or required to obtain federal funding.”7


Te


Court disagreed, pointing out that the DFWA does not require drug testing, nor does it prohibit the Company from employing someone who uses illegal drugs outside the workplace. Te Court said that the Company’s choice of a zero-tolerance policy was “not required by federal or required to obtain federal funding.” The Company also argued that the


law prohibits discrimination based on a person’s status as a medical marijuana patient, but not on their use of marijuana. The Court found that this suggestion “makes no sense.”8


PUMA protects a


user from employment discrimination pursuant to their status as a qualified medical-marijuana patient. Additionally, the language of PUMA makes clear that qualified medical-marijuana users are protected from discrimination at work for using marijuana outside working hours. Noffsinger comes on the heels of two other medical-marijuana cases, both on a state level. In Rhode Island, Callaghan v.


Darlington Fabrics Corporation, et al (2017), a case in the state trial court, held that the employer violated the state’s medical-marijuana statute prohibiting discrimination based on the employee’s status as a medical-marijuana patient. In a Massachusets case, Barbuto v.


Advantage Sales and Marketing, LLC (2017), the state Supreme Judicial Court agreed with an employee’s argument that her employer discriminated against her based on her handicap, manifested by the


www.datia.org


recommendation to treat it with medical marijuana. Te state’s medical marijuana law was secondary to the decision; the case was brought under the state’s human- rights law. Te court, in this case, treated marijuana as if it was any other form of medication recommended by a doctor. Treating marijuana like any other


medication, the Court concluded the employer would have a duty to “engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy.” Where no alternative medications exist,


the Court said the employer would bear the burden of proving that the employee’s use of the medication would cause an undue hardship to the employer, that any reasonable accommodation to the drug testing policy could not be made, and the employee’s medical needs could not be reasonably accommodated. Te Court remanded the case to the


Superior Court for further proceedings consistent with the Supreme Judicial Court’s findings and to allow the parties a chance to prove their arguments.


Clipse v. Commercial Driver Services, Inc. (2015)—Employer Paid Over $84,000


In another example of state anti- discrimination law application, a commercial truck driver in Washington was hoping to change jobs and start work as an instructor at a commercial driving school. As part of the hiring process, the applicant was required to undergo a medical exam for a medical examiner’s certificate that qualified him to drive trucks. Te exam’s notes indicated he was taking methadone, but the driver was taking methadone for a torn rotator-cuff injury he had previously suffered. He eventually received a one-year medical examiners’ certificate and documentation


datia focus 45


from his doctors that showed he was capable of safely driving while taking the medication. His would-be employer did not seem


to agree with the assessment of the applicant’s doctor. The employer told him to get “cleaned up,” stated that he couldn’t hire the applicant because he was taking methadone, and said he couldn’t risk hiring the applicant because he might “relapse,” suggesting the applicant was taking methadone because of some suspected drug addiction. The employer also later justified this position by saying his workplace had a “no tolerance” drug policy and required a specific medical examiner’s certificate the applicant didn’t have (a requirement that was not in any written policy the company possessed at the time). Unfortunately for the employer, the


Washington State Court of Appeals had a “no tolerance” policy for the employer’s justifications. Relying entirely on the state disability laws (RCW 49.60.030(1); (RCW 49.60.040(7) (a)-(c)), the Court sided with the driver, finding that he had a disability and that the employer discriminated against him for it. The Washington law prohibits


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