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June 2011

Washington Supreme Court Upholds Termination of Medical Marijuana User

In the minefield of Washington disability law, one potential landmine for employers has now been diffused.  The Washington Supreme Court in Roe v. TeleTech Customer Care Mgmt. LLC, Dkt. 83768-6, held that the Washington State Medical Use of Marijuana Act ("MUMA") does not require that private employers accommodate an employee's off site use of medical marijuana.  The Court further held that MUMA does not create a public policy that would support a claim for wrongful discharge in violation of public policy.

Plaintiff Roe suffered from debilitating migraine headaches for which her physician issued a "Documentation of Medical Authorization to Possess Marijuana for Medical Purposes in Washington State".  Roe used marijuana at home in order to allow her to care for her children and to work.  In October 2006, TeleTech offered Roe a position contingent upon her passing a drug test.  A week after starting work, TeleTech learned that Roe's drug test results were positive for marijuana and, after confirming that the company does not make exceptions for medical marijuana use, TeleTech terminated Roe's employment.

Roe sued for wrongful termination, claiming her termination violated MUMA and public policy.  The Superior Court granted summary judgment in favor of TeleTech and the Court of Appeals affirmed.  The Supreme Court upheld the dismissal.

The Supreme Court found that MUMA does not prohibit an employer from discharging an employee for the authorized use of medical marijuana.  The Court recognized that the purpose of MUMA is a narrow one—to provide users and physicians with an affirmative defense under State drug laws, not to broadly entitle users to employment protections.  The Court pointed to the specific language in MUMA, which stated, "[n]othing in this chapter requires any accommodation of any medical marijuana use in any place of employment, in any school bus or on any school grounds, or in any youth center".  Former RCW 69.51A.060(4) (1999).  Given the statute's explicit statement against any obligation to accommodate, the Supreme Court felt that the initiative language was plain and unambiguous.

The Court next rejected Roe's argument that there was an implicit duty to accommodate off-site use of marijuana.  Roe pointed out that RCW 69.51A.060(4) was amended in 2007 to state "[n]othing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment".  (Emphasis added).  Roe argued that the specific addition of the "on?site" language created an implicit recognition that employers must accommodate off-site use.  The Court rejected this argument, finding that "the Legislature's addition of the phrase 'on?site' to RCW 69.51A.060(4) is redundant because the section already expressly disavowed any accommodation obligation 'in any place of employment'".  The Court concluded that "neither the original nor the current language of MUMA requires employers to accommodate an employee's off-site use of medical marijuana".

The Supreme Court also rejected Roe's assertion that Washington public policy supports a cause of action for wrongful termination.  Relying on Thompson v. St. Regis Paper Co., 102 Wn.2d 219 (1984), the seminal case setting forth the requirements for Washington public policy claims, the Court found that Roe could not meet the first test required to prove a clear public policy.  The Court found that neither MUMA nor any court decisions interpreting MUMA support a broad public policy "that would remove all impediments to authorized medical marijuana use or forbid an employer from discharging an employee because she uses medical marijuana".  Significantly, the Court also found that recognizing a broad public policy when the underlying act violates federal law would be inconsistent with Thompson's directive to "'proceed cautiously' when finding a public policy".

While Roe did not assert any claim under Washington's Law Against Discrimination, the Supreme Court effectively foreclosed claims under that avenue as well.  In footnote, the Court noted that the Washington State Human Rights Commission acknowledges that "it would not be a reasonable accommodation of a disability for an employer to violate federal law, or allow an employee to violate federal law, by employing a person who uses medical marijuana."  This dicta seems to indicate that a failure to accommodate claim would fail because allowing marijuana use is per se not a "reasonable accommodation".

In sum, while the Supreme Court did not explicitly state that employers under all circumstances may terminate employees for medical marijuana use, it has effectively foreclosed most avenues by which plaintiffs could assert a possible claim.  While additional landmines may be uncovered in the future, at least for now, this path seems a little less murky.

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