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Fictional Mailbag: Can I Fire A Medical Marijuana Cardholder?

August 14, 2015

By Michael G. McClory

Every once in a while we receive a letter in the (fictional) mailbag that is tough to describe and quite compelling.  This week, Isabel, the new HR manager at LabCo (and someone who is new to HR), wants to know whether she may fire the owner’s son for having an Oregon medical marijuana card.  In passing, Isabel also makes a number of alarming admissions about her motivation.  Here is Isabel’s nerve-racking question and our response to it.

Isabel’s Question:

I really want help, but need to be careful so I am not going to use real names.  Call me Isabel.  (Get it?  Until six months ago I was a high school English teacher.  HR is easier, and fun.  I just think of employees like students and everything, almost, is intuitive.)

LabCo, my employer, is a “science-y” company located just outside of the city.  It is a small but growing employer (65 FTE at last count).  Most of the employees seem well-qualified to me (an English teacher with no science training), though there is one exception: Chip, the owner’s son.  He definitely needs to be sent to detention.  Chip flouts the rules, apparently believing his Mama (the owner) will never discipline him.

Yesterday, another employee (let’s call him Jake) came to my office.  He said that on Wednesday he had taken a “selfie” in the parking lot with Chip and showed it to me.  Chip was pointing with one hand to a card he held with this other hand.  The card appeared to say “DHS OMMP Patient Identification Card” and had Chip’s name on it.  Jake told me this was a medical marijuana card, that Chip had recently fractured his foot, and had sought the card because he may want to use marijuana to address pain.

Setting aside the fact that Jake is a tattletale, I know I have to do something.  LabCo has a strict no-drug policy.  In a similar situation (an employee outed as drug user by a co-worker), my predecessor sent the outed employee for testing – and the test came back clean.  It was a disaster; the employee could not be fired and everyone still talks about it. 

I want to avoid that problem with Chip.  My plan is to confront him about the medical marijuana card and he either admits it or I show him the picture.  Either way, I will let him go for having a card.  This seems much cleaner than a test, don’t you agree?  (Besides, since I don’t know whether he hurt himself on the job, I want to head off any workers’ compensation claims, requests for leave, or requests for job modifications.  Gotta think like an English teacher, Bullard Edge.)
 
The Bullard Edge‘s Response:

Whoa!  Put a pin in that parenthetical.  We will come back to it momentarily.

Your main question, Isabel, concerns medical marijuana and workplace drug policies.  Specifically, you propose terminating Chip (I guess you are over your concern about upsetting Mama) because of his status as a medical marijuana cardholder.  You describe this as “cleaner” than sending Chip for drug testing.

WRONG.

Not to be rude or flip, but your plan is legally risky.  Let’s review five quick points.

First, just this week, a state court judge in Rhode Island allowed a medical marijuana cardholder case to proceed to trial.  Rhode Island law expressly prohibits an employer from taking adverse employment action against “a person solely for his or her status as a cardholder.”  In that case the plaintiff alleges that an employer unlawfully rescinded its offer of employment because of her medical marijuana cardholder status.  The judge will let the jury decide whether the plaintiff’s allegation is true (unlawful) or whether the employer rescinded the offer because of marijuana use in violation of company policy (not unlawful). 

Second, unlike Rhode Island, neither Oregon nor Washington explicitly protects medical marijuana cardholders from adverse employment action because of their cardholder status.  However, an employer who takes action based solely on cardholder status runs the risk of incurring disability discrimination liability.  The argument would be: (a) most medical marijuana cardholders are disabled under the ADA and parallel state law; (b) the employer rescinding a job offer or terminating an employee because of cardholder status is not responding to drug use in violation of a workplace drug policy; (c) the employer, instead, is taking action based on the person’s actual or perceived disability.

Third, you do not have any evidence that Chip has used marijuana in violation of LabCo’s workplace drug policy.  Moreover, your plan would at most confirm Chip’s status as an Oregon medical marijuana cardholder (before terminating him.  Mama definitely would not be happy with Chip being fired for the wrong reason.)

Fourth, the similar situation “disaster” to which you refer was handled perfectly.  Kudos to the former HR manager.  (Just an observation – LabCo seems to have an unusually high number of snitches.)  While you did not provide all of the details, it sounds like (a) one employee reported that another employee had a medical marijuana card, (b) that the HR manager determined there was reasonable suspicion to believe the employee may have violated the company’s drug policy, (c) that the employee was sent for drug testing consistent with the policy, (d) that the test was negative, and (e) no discipline was imposed because testing removed the reasonable suspicion.  That is not a disaster.  That is HR following company policies.

Fifth, in the case of Chip, I do like the idea of you meeting with him to discuss Jake’s report.  If in the course of that conversation you conclude that you have reasonable suspicion to believe Chip may have violated LabCo’s drug policy, the appropriate action would be to send him for testing.

Finally, let’s talk about that parenthetical.  You said: “Besides, since I don’t know whether he hurt himself on the job, I want to head off any workers’ compensation claims, requests for leave, or requests for job modifications.”  Those are all wrong answers.  We do not have the time to go into everything here, but I will rattle off a few bullet points for your consideration.
 
  • The workers’ compensation laws require that employers provide insurance coverage for workplace injuries and illnesses.  Employees have a right to seek workers’ compensation benefits and employers have an obligation to assist.  It is unlawful to discourage the filing of claims for workers’ compensation benefits or to terminate because an employee has or might seek benefits.  You ought to ask Chip if he hurt himself at work and give him a claim form.
     
  • Regardless of where Chip was hurt, he may have a need to take FMLA/OFLA protected leave.  With 65 employees LabCo is covered by both statutes.  Again, it would be unlawful to terminate because an employee has or might request leave.
     
  • Regardless of whether Chip needs leave, he may be an individual with a disability under the ADA and Oregon law and he may need reasonable accommodation (job modifications are one category of accommodations that may be reasonable in a specific situation).  He has not requested it and so far you do not have reason to believe he may need accommodation.  However, it would be unlawful to terminate because an employee requests, might request or might need reasonable accommodation.
     
You will find that HR is neither easy nor intuitive.  There is a lot of nuance and homework.  Even seasoned HR professionals are continually learning new things.  Call Bullard Law if you need help or have questions.

Good luck and best regards,

 
The Bullard Edge

(P.S. We cannot resist asking your opinion.  Which is the better novel ~ The Great Gatsby or Wuthering Heights?)

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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