​ Washington Supreme Court To Decide

Washington voters approved the medical use of marijuana back in 1998, but state law is unclear on whether employees can be fired for legally using cannabis. Now, 13 years after voters legalized medicinal pot, that question is likely to be answered by the Washington Supreme Court, which heard a test case on the issue last month, reports Jonathan Martin at

The case involves a woman fired by a Bremerton telemarketing company in 2006 because she had failed a preemployment drug screen, showing up for marijuana — which she legally used with a doctor’s authorization.

​The woman, identified in court by the pseudonym Jane Roe, used marijuana at night to treat migraine headaches. The call center, Teletech Customer Care, offered no evidence that marijuana use impaired her ability to work.

Such use is implicitly protected in Washington’s medical marijuana law, according to Michael Subit, Jane Roe’s Seattle attorney, because voters legalized it. “It would flabbergast the average voter to think, ‘I’ve been given this right but can be fired for it anyway,” he said.

Similar cases in other states, including California, Michigan and Oregon, have been decided in favor of businesses who had fired employees for medical marijuana use.

Washington business groups are keeping a close eye on the Jane Roe case, worried that the court could potentially define medical marijuana use as a disability and therefore protect patients from being fired for it.

The initiative passed by voters in 1998 included a sentence saying that the law did not require “any accommodation of any medical use of marijuana in any place of employment.”

The Washington Legislature amended that language in 2007 to say “any on-site medical use.” But the law said nothing about use outside work or during off-hours, so there is still uncertainty about the intent.

The issue crops up most commonly in the area of preemployment drug screening. Many employers also conduct drug tests “for cause,” such as obvious impairment, or after any on-the-job accident, especially when Workman’s Compensation claims are involved.

​A 2006 survey by a national association of human resources managers found that 84 percent of companies drug-test new employees. Nearly 40 percent conduct random testing of those already on the payroll.

Several big companies in the state, including Microsoft and the University of Washington, don’t routinely drug-test new hires unless the jobs are defined as “security sensitive” or involve driving. Other big employers, including Boeing, do screen. Federal contractors are required by law to ensure “drug-free workplaces.”

Many companies with prescription drug policies will ban all marijuana use — even in states where it is legal for medicinal purposes — while usually exempting prescription drugs.

Such a double standard upsets medical marijuana advocates.

Washington’s Department of Employment Security, however, treats marijuana the same as prescription pharmaceuticals. If an employee files for unemployment benefits based on being fired for failing a drug test — and there is no evidence they were high at work — the state will usually approve the claim, according to Matt Buelow, a policy manager from the Department of Employment Security.

“In this state, medical marijuana has been legalized through the voter process,” Buelow said. “Because it’s legal in this state, as far as we’re concerned, it’s like a prescription. For someone to be denied benefits, there has to be willful misconduct.”

Employment protections typically haven’t followed medical marijuana legalization. Rulings from the California Supreme Court in 2008 and the Oregon Supreme Court in 2010 both upheld the right of employers to fire employees for medical marijuana use, even off the job.

And a federal district court in Michigan this month upheld Walmart’s firing of former employee of the year Joseph Casias , a legal user under the state’s medical marijuana law, when he failed a drug test given after an on-the-job accident.

It’s a troubling trend, according to Kris Hermes, a spokesman for Americans for Safe Access, a national medical marijuana advocacy group. Some states that recently passed medical marijuana laws, including Rhode Island and Arizona, have employment protections, but most of the 15 states allowing medical use do not, Hermes said.

“We hear reports all across the state of instances of employment discrimination, and the remedy is extremely limited,” Hermes said.

A medical marijuana reform bill introduced in this session of the Washington Legislature included explicit employment protection. But that provision was stripped out of the bill’s language as it advanced through the state Senate.

The fact that employment protections were included in the new bill shows that the current law does not contain them, according to James Shore, a Seattle attorney who argued for Teletech before the state Supreme Court in January.

“If one is seeking to create workplace rights, the Legislature should put it out front for the voters, so people know what it’s about,” he said. “The initiative passed by the voters was never intended to create workplace rights.”

Jane Roe, who began using medical marijuana after she said conventional pharmaceuticals “made me whacked out of my mind,” said she had never used marijuana before obtaining a medical authorization. With cannabis, she said, the migraines “largely disappeared.”

She was pulled out of her training class one week and fired on October 18, 2006.

“It was very humiliating for me,” she said. “I’m not … some dope-smoker pot lady. I’m a good mom.”

She lost in trial court, and the Court of Appeals sided with Teletech, saying Washington’s medical marijuana law only gives a defense against criminal charges.

She is now waiting for the Washington Supreme Court decision. The court often takes months to decide complex cases.

“People shouldn’t have to choose between their health and their employment for such a valid reason as medical marijuana,” she said.