CAN LEGAL USE OF MEDICAL MARIJUANA GET YOU FIRED?

State Supreme Court to Decide

Washington voters approved the use of medical marijuana, but state
law is murky on whether workers can be fired for legally using pot.

Among the questions left unanswered by Washington's medical-marijuana
law: Can legal use of medical marijuana get you fired?

Thirteen years after voters approved its use, that question is likely
to be answered by the Washington Supreme Court, which heard a test
case on the issue last month.

It involves a woman fired by a Bremerton call center in 2006 because
she failed a pre-employment drug test but had a valid authorization
from a doctor.

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

Michael Subit, Jane Roe's Seattle attorney, argued before the state
high court that such use is implicitly protected because voters
legalized it. "It would flabbergast the average voter to think, 'I've
been given this right but can fired for it anyway,' " he said.

Courts in other states, including Oregon and California, have ruled
in favor of businesses in similar cases.

Washington business groups are watching the Jane Roe case closely,
anxious that the court potentially could define medical-marijuana use
as a disability and therefore protect patients from firing.

"There's only so often that we want Washington to be an outlier, to
appear to be less competitive because we put obligation on employers
that they wouldn't face elsewhere," said Timothy O'Connell, a Seattle
employment lawyer speaking on behalf of the Association of Washington Business.

Citing a recent letter from Idaho's governor seeking to woo local
businesses, O'Connell said, "Do we want the governor of Idaho to have
another paragraph to send to employers here?"

"A Little Nervous"

The initiative passed by voters in 1998 included a sentence stating
that it did not require "any accommodation of any medical use of
marijuana in any place of employment."

The Legislature amended it in 2007 to say "any on-site medical use."
But the law remained silent about use outside work, leading to
uncertainty about the intent.

The issue most commonly arises in pre-employment drug testing. Many
employers also conduct drug tests for cause -- such as obvious
impairment -- and after accidents or car crashes.

A 2006 survey by SHRM, a national association of human-resources
managers, found that 84 percent of companies drug-test new employees;
nearly 40 percent do random testing.

Locally, several big employers -- including Microsoft and the
University of Washington -- don't routinely drug-test new hires
unless the jobs are "security-sensitive" or involve driving. Other
big employers, including Boeing, do screen. Federal contractors are
required to ensure drug-free workplaces.

Rich Meneghello, a longtime employment lawyer in Portland, said
companies with clear drug policies will prohibit use of marijuana
because it is illegal but may exempt prescription drugs.

"Employers across the country have now made a distinction between
prescription drugs and medical marijuana," he said. "Employers just
get a little nervous about" marijuana because of concerns about
liability and lost productivity.

Such a distinction leads medical-marijuana advocates to howl about a
double standard.

But Washington's Department of Employment Security treats medical
marijuana the same as a prescription drug. If an employee files for
unemployment benefits based on being fired for a dirty drug test, and
there is no evidence they were high at work, the state usually will
approve the claim, said Matt Buelow, a policy manager for the agency.

"In this state," he said, "medical marijuana has been legalized
through the voter process. 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."

Courts Favor Business

As the medical-marijuana movement has advanced throughout the
country, employment protections haven't always followed. Rulings from
the California Supreme Court in 2008 and Oregon Supreme Court in 2010
both upheld the right of employers to fire employees for use.

And a federal-district court in Michigan last month upheld Wal-Mart's
firing of an employee -- a legal user under Michigan's
medical-marijuana law -- when he failed a drug test administered
after an on-the-job accident.

The trend is troubling, said Kris Hermes, a spokesman for Americans
for Safe Access, a national medical-marijuana advocacy group. Several
states that recently passed medical-marijuana laws, including Rhode
Island and Arizona, have employment protections, but most of the 15
states allowing its use do not, he said.

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

A sweeping bill introduced this legislative session in Olympia
included employment protection. But that provision was stripped out
as the bill -- which would legalize and regulate dispensaries and
commercial grow operations -- advanced through the state Senate.

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

"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."

The Jane Roe case began in 2006, when the woman, then a married
mother of two in her early 20s, began having severe migraines. In an
interview, she said she tried medications that "made me whacked out
of my mind."

Small Doses

The woman, who declined to be identified for this story to protect
her children and her future work prospects, said she never had used
marijuana before she turned to it as medicine. After obtaining an
authorization from a clinic specializing in medical marijuana, she
began taking small doses -- often with tinctures, a marijuana-infused
alcohol -- before sleep, and never in front of her children. The
migraines, she said, "largely disappeared."

She already had worked for Teletech -- a Colorado-based firm that
handles customer service for Sprint from its Bremerton facility --
once before, and applied again knowing she'd have to pass a drug
test. She said she offered to show the company her doctor's note, but
the offer was declined.

In court documents, the company said its contract with Sprint
required drug testing and makes no exception for medical marijuana.

The woman was pulled out of her training class after a week and fired
Oct. 18, 2006.

"Very Humiliating"

"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 the state's medical-marijuana law only gives a
defense against criminal charges. She now waits for the Supreme
Court, which often takes months to decide complex cases.

Meanwhile, she earned a four-year degree in hospital administration
and has worked at firms that don't do pre-employment screening. If
necessary to land another job, she said she would stop using medical
marijuana -- and suffer the health consequences. But she said she
shouldn't have to.

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