Woman fired over medical marijuana to get day in high court

Should an employee's use of medical marijuana - at home, with no side effects on the job - be exempt from workplace drug-use policies?

That's one of the questions judges and lawmakers will be wrestling with next month, when the state Supreme Court hears a case of a woman fired for using the drug, and the Legislature takes up a bill expanding protections in the state's medical marijuana law.

The case before the court involves a woman suing her former employer, after she failed a drug test and was fired from a customer-service job in Bremerton. The woman, using "Jane Roe" as a pseudonym in court records, was using marijuana prescribed by her doctor for debilitating migraines.

The woman is using the alias because medical marijuana use remains illegal under federal law.

The Court of Appeals ruled against the woman last year, saying the state's medical marijuana law protects patients only from criminal prosecutions, not in employment disputes.

But in petitioning the high court for review, the woman's attorney argued that the law -- passed by voters in 1998 as Initiative 682 -- allowed for broader protections. Michael Subit wrote that voters and lawmakers who enacted the Medical Use of Marijuana Act would be "flabbergasted if qualified patients could lose their jobs simply for using medical marijuana at home in accordance with the Act."

Subit's client had been hired in 2006 by Colorardo-based TeleTech Customer Care Management to do customer service via phone and emails at a Bremerton office. The company had a drug-test policy; the woman said she would fail it and offered to provide medical documentation for her marijuana use.

She took the test, started work, and was fired about a week later, because she tested positive for cannabis.

"She used marijuana in such small doses that it had no side effects," Subit wrote. "It did not negatively affect her ability to work or take care of her children." He said the woman never used it on the job, or in front of her kids, and was not impaired at work.

Subit also wrote that the woman had suffered from chronic pain, nausea, blurred vision and light sensitivity for years, and it wasn't until her doctor prescribed marijuana that her symptoms subsided.

What did voters want with medical marijuana law?

The issue hinges on the intent of the law, which says "humanitarian compassion" makes allowing medical marijuana necessary, and that patients with terminal or debilitating illnesses "shall not be penalized in any manner, or denied any right or privilege."

The Court of Appeals said the "average informed voter" would understand that the law addresses only one subject - that of criminal prosecutions. Subit said most people would think employment is considered a privilege.

He also said the law balances the rights of patients with interests of the workplace, by not requiring employers to allow on-site marijuana use.

On Monday, the American Civil Liberties Union of Washington filed a brief (PDF) in support of the woman, saying she should be treated the same way as any other worker who takes prescribed medication for a debilitating condition.

"Patients suffering from terminal and debilitating medical conditions shouldn't be forced to choose between a job and a therapy that helps them," said Alison Holcomb, ACLU's drug policy director.

The court is expected to hear oral arguments on Jan. 18.

Next month, Sen. Jeanne Kohl-Welles is expected to introduce a bill (PDF)clarifying the state's medical marijuana law. The bill seeks to ban an employer from firing - or refusing to hire - a marijuana patient, solely because of off-site use of the drug. Exceptions would include if the workplace involves physically hazardous or public safety duties.

The bill would also provide protections in housing and parenting plans. It would prohibit medical marijuana use from being a factor in refusing housing or restricting parental rights.