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Is firing employees for medical marijuana discrimination?

All seven of the courts that have confronted this issue in the past decade have ruled that employers can enforce zero tolerance drug policies to fire employees for lawful use of medical marijuana. Here’s the rundown:

2013: COLORADO (Federal Court)

What Happened: Brewery employee with hepatitis C, fired after testing positive for marijuana, claims use was legal under Colorado medical marijuana law and that he never used or was high at work.

Ruling: Federal court says brewery didn’t commit disability discrimination and that duty to accommodate doesn’t prevent employers from enforcing “standard employment policies against employee misconduct.”

Curry v. MillerCoors, Inc., Civil Action No. 12-cv-02417-JLK, (U.S. Dist. Ct., 2013)

2012: MICHIGAN (Federal Court)

What Happened: Walmart fires a store employee after he tests positive for marijuana. Employee produces a valid registration card authorizing him to use medical cannabis to manage pain from his brain tumors. He denies using or being impaired by marijuana at work.

Ruling: Federal court rules that Michigan medical marijuana law is irrelevant because it protects only against criminal prosecution and doesn’t extend to employment in the private sector.

Casias v. Walmart Stores, Inc., 695 F.3d 428 (6th Cir., 2012)

2011: WASHINGTON

What Happened: Telecom company refuses to make exception to its zero tolerance policy for medical marijuana, and, after positive marijuana test, fires employee who lawfully was using cannabis for debilitating migraines.

Ruling: Washington Supreme Court says: 1. Medical marijuana law doesn’t prevent firing for lawful medical cannabis use; and 2. Duty to accommodate under disability law doesn’t require letting employees use medical marijuana away from work.

Roe v. TeleTech Customer Care Mgmt., LLC, 257 P.3d 586 (2011)

2010: OREGON

What Happened: Knowing that he’ll have to take a drug test to receive a promotion, a drill operator pre-emptively tells his employer that he uses medical marijuana for anxiety. Although his use is legal under Oregon law, he’s fired the next week.

Ruling: Oregon Supreme Court finds that employer didn’t commit disability discrimination since duty to make reasonable accommodations doesn’t require tolerating use of drugs illegal under federal laws.

Emerald Steel Fabricators, Inc. v. BOLI, 230 P.3d 518 (2010)

2009: MONTANA

What Happened: Failed marijuana test results in firing of union employee who claims his use, to treat pain, was lawful under state medical marijuana law. Employee sues for disability discrimination.

Ruling: Montana Supreme Court finds that neither state nor ADA duty to accommodate gives an employee a right to sue his employer for not letting him use medical marijuana.

Johnson v. Columbia Falls Aluminum Co. LLC, 2009 MT 108 (2009)

2008: CALIFORNIA

What Happened: Systems administrator, fired after positive marijuana test, claims he has state license to use medical marijuana for back spasms, that he only ingests at home and that it doesn’t impair his ability to do the job.

Ruling: California Supreme Court acknowledges that state disability discrimination law requires employers to accommodate use of legal prescription drugs but not to accommodate drugs that are illegal under federal laws.

Ross v. Raging Wire Telecommunications, Inc., 174 P.3d 200 (2008)

2006: OREGON

What Happened: Millwright suspended and eventually fired after failing marijuana test. He claims that use, to treat his spasms, is lawful under state medical marijuana law and sues for discrimination.

Ruling: Oregon Supreme Court holds that millwright’s spasms weren’t a substantial enough limitation to constitute a “disability” under the law, and throws out the case.

Washburn v. Columbia Forest Prods., Inc., 134 P.3d 161 (2006)

Disclaimer: Because legislative changes are ongoing, managers will want to check local laws or consult with an attorney.

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