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Termination Because Of Medical Marijuana Cardholder Status Is Unlawful

May 31, 2017

By Michael G. McClory

In an August 14, 2015 post, The Bullard Edge responded to a (fictional) mailbag letter from Isabel, an HR manager who planned to fire an employee because of his acquisition of a medical marijuana card.  While Isabel sought a “TBE Seal of Approval” for her proposed action, we threw cold water on her plan.  Specifically, we stated:

“However, an employer who takes action based solely on cardholder status runs the risk of incurring disability discrimination liability.” 
We were right then and nothing has changed (in Oregon – yet).
Our inspiration for the (fictional) mailbag letter came from a Rhode Island state court’s denial of a motion to dismiss a complaint.  The parties in that case agreed that Darlington Fabrics had rescinded an offer of employment made to Christine Callaghan; the issue before the court was the reason for rescinding the offer.  Callaghan claimed that Darlington rescinded its offer of employment to her because of her medical marijuana cardholder status in violation of Rhode Island law, which expressly states: “No … employer … may refuse to … employ, … or otherwise penalize, a person solely for his or her status as a cardholder.”  The employer contended that it rescinded the offer because of Callaghan’s marijuana use and asked the court to dismiss the case.  The judge denied the motion to dismiss and allowed Callaghan to proceed with her lawsuit.
Last week in Rhode Island …
Callaghan’s complaint never made it to trial.  Last week, the trial court granted summary judgment to Callaghan.  In a lengthy opinion filled with detailed analysis and puns, the trial court held that Darlington violated Rhode Island’s medical marijuana act when it rescinded its offer of employment to Callaghan because of her status as a medical marijuana card holder. 
However, to get to that conclusion, the court made a number of interpretations of the state law, at least one of which seems ripe for appeal.  The Bullard Edge is particularly interested in this interpretation of Rhode Island’s medical marijuana law:
“Thus, reading the two statutes together, this Court gleans that the Hawkins-Slater Act provides that employers cannot refuse to employ a person for his or her status as a cardholder, and that that right may not be denied for the medical use of marijuana.”
The emphasis on the word “and” is in the opinion; we did not add it.  To reach that conclusion, the court found the words “for the medical use of marijuana” elsewhere in the statute and glued them onto the express protection against discrimination because of cardholder status. The court offered a thoughtful, but extremely attenuated, explanation.  According to the court, its interpretation is necessary to prevent medical marijuana users from being treated less favorably under the law than recreational marijuana users.  Here is the logic train.
  • Where an employer, like Darlington, requires a candidate to pass a pre-employment drug test, recreational and medical marijuana users have different options.
  • A “recreational user could cease smoking long enough to pass the drug test and get hired, and subsequently not be subject to future drug tests, allowing him or her to smoke recreationally to his or her heart’s content.”
  • On the other hand, stopping use long enough to pass a pre-employment drug test would not be an avenue available to a medical marijuana user who, under the statute, is using because of a debilitating medical condition.
  • The court reasons that its interpretation prevents cardholder status protection from being “illusory” since “every medical marijuana patient could be screened out by a facially-neutral drug test.”
While there may be a number of problems with the court’s rationale, the most obvious problem is that the Rhode Island medical marijuana law does not actually provide protection against adverse employment action for the use of marijuana.  The legislature could have put such a provision in the law, but did not.  The only express protection in the law is the provision prohibiting adverse employment action because of medical marijuana cardholder status.
Implications for employers everywhere
We believe the court’s decision will be overturned on appeal.  Nevertheless, there are a number of aspects of it that are relevant for employers in any state with legalized marijuana.
First, the court rejects any distinction between medical marijuana cardholders and medical marijuana users.  “Defendants continually made the incredulous argument that the General Assembly was making a distinction between cardholders and users of medical marijuana. Defendants would have the Court believe that a patient cardholder might never use medical marijuana.”  The court is entirely correct in rejecting this distinction; almost every cardholder is going to be a user.
Second, in light of this, states will at some point be forced to confront the issue of marijuana and the workplace.  Specifically, states will have to decide whether an employer may take adverse employment action against an applicant or employee for the use of marijuana when off-duty or outside of the workplace.  In most cases, the current answer to this question is yes.
Third, with all of these state marijuana laws it is logical to assume that there are more marijuana users in the general population, and in the workforce.  This number of job applicants and job holders using marijuana is climbing.  As a result, there is growing pressure on states to provide job protections to marijuana users.  Common examples of the protections sought include (a) requiring reasonable accommodation of medical marijuana and/or (b) requiring that marijuana be treated like alcohol such that it is only a violation to use at work or be impaired on the job. 
Fourth, in November 2016 Maine enacted a recreational marijuana law that makes it unlawful for an employer to take adverse employment action against an applicant or employee for use off-duty or outside of the workplace.  Under that law an employer may only take adverse action where marijuana is used in the workplace or the employee is impaired in the workplace.
Fifth, all of these pushbacks depend on impairment testing.
  • Reasonable accommodation: Assume that Saul, who drives a forklift at an explosives factory, has recently begun using medical marijuana because of a medical condition.  Marijuana is prohibited by the employer drug policy.  Would it be reasonable to make an exception for Saul?  That probably depends on the degree of his impairment from medical marijuana.
  • Treat marijuana like alcohol: In this scenario, Susie would violate the drug policy if she were to use marijuana on the clock or in the workplace.  However, Susie would not violate the drug policy if she were to use marijuana use outside of work, provided that she is not impaired when on the clock or in the workplace.
  • Laws like the one in Maine: See the example with Susie above.
While all of these pushbacks depend on accurate testing for marijuana impairment, at the moment that test does not exist.  The only test available to employers currently is a test for the presence of marijuana in the system.  A positive test does not mean that the person is impaired, but a negative test strongly suggests no impairment.  Therefore, employers err on the side of safety by making a positive test a violation of their drug policies.  Mandating any other approach would be foolhardy. 
Best regards,
The Bullard Edge

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