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Court rulings involving medical marijuana generally have held that employers are under no obligation to accommodate medical marijuana users, despite the laws in 14 U.S. states that permit doctors to prescribe it.
In January 2008, the California Supreme Court ruled 5-2 in Gary Ross vs. Ragingwire Telecommunications Inc. that an employee whose doctor recommended he use marijuana cannot claim disability-based discrimination against an employer that fired him for a positive drug test. At issue was whether California's Compassionate Use Act of 1996 would override an employer's policy against drug use.
In a March 2009 ruling, the Montana Supreme Court in Mike Johnson vs. Columbia Falls Aluminum Company L.L.C. upheld a lower court ruling, stating “an employer is not required to accommodate an employee's use of medical marijuana.”
However, employers in Oregon are awaiting a state Supreme Court decision in which an employer is appealing a 2008 appellate court ruling in favor of a worker in Emerald Steel Fabricators Inc. vs. Bureau of Labor and Industries. The case involves an employer who refused to hire a temporary worker as a permanent employee after learning he was a medical marijuana user. The appellate court ruling was based on technical grounds.
“It's definitely an evolving area of the law,” said James M. Shore, a partner with law firm Stoel Rives L.L.P. in Seattle.
Mr. Shore successfully represented the employer in an appellate court decision last year in Jane Roe vs. Teletech Customer Care Management L.L.C., in which the court ruled that Washington's medical marijuana law did not protect a medical marijuana user who was fired after the employer learned she had failed a pre-employment drug screening test. The woman is seeking a hearing before the state's Supreme Court.
Michelle D. Bayer, an attorney with Frank, Haron, Weiner and Navarro P.L.C. in Troy, Mich., said employers' success in some courts “doesn't mean they're always home free. I always advise clients they have to proceed with caution and this is a high-risk situation, but there's nothing wrong with employers taking a zero-tolerance policy and enforcing it.”
In Colorado, where courts have not ruled on the issue, employers also face apparently conflicting laws, many observers say.
The state's medical marijuana amendment says employers do not have to accommodate medical marijuana in the workplace. But the Colorado Anti-Discrimination Act, which is informally known as the lawful off-duty activities statute and originally was intended to apply to tobacco smokers, prevents employers from terminating workers for engaging in lawful activities off worksite premises during nonworking hours.
Employers are waiting to see the results of the litigation that emerges from the issue, said Vance O. Knapp, an attorney with law firm Sherman & Howard L.L.C. in Denver.