FIRED FOR USING LEGALLY PRESCRIBED POT? PHARMACEUTICAL DISCRIMINATION
IS ALIVE AND WELL IN THE WORKPLACE

How Can an Employer Terminate an Employee for Off-The-Job Marijuana
Use, Even If the Employee Is Authorized Under State Law to Use
Cannabis Medicinally?

"Separate but equal" was a legal doctrine once widely used by the
courts to justify segregation. And while the courts have largely
turned away this doctrine over the past 60 years, several state
supreme courts in recent years have begun applying this principle to
arbitrarily discriminate against state-authorized medical cannabis
patients in the workplace.

Case in point: earlier this month the Washington Supreme Court ruled 8
to 1 that an employer may terminate an employee for off-the-job
marijuana use, even if the employee is authorized under state law to
use cannabis medicinally.

The majority determined that the state's 1998 medical marijuana law is
narrow in its scope. Its sole purpose, the justices ruled, "is to
protect the rights of qualifying patients to use medical marijuana in
accordance with the advice and supervision of their physicians. ...
Washington court decisions do not recognize a broad public policy that
would remove any impediment to medical marijuana use or impose an
employer accommodation obligation."

In 2010, the Oregon Supreme Court made a similar ruling in Emerald
Steel Fabricators Inc. v. Bureau of Labor and Industries. The court
held that an employee who uses marijuana in accordance with Oregon's
12-year-old medical cannabis law is nonetheless "engaged in the
illegal use of drugs" and may be fired for his or her off-the-job
conduct. In 2008, the California Supreme Court in Ross v. Ragingwire
issued a similar ruling.

These rulings, as well as a separate U.S. District court ruling from
Michigan (Casias v. Walmart), may be interpreted as a victory to
medical marijuana opponents, many of whom have alleged that it would
be "irresponsible" for employers to ignore workers' off-the-job
medical cannabis use in a manner similar to the way employee's use of
other presently goes unsanctioned. Many of these opponents claim that
anything less than an outright ban of state-authorized medical
marijuana patients from the workplace would significantly jeopardize
employee productivity and increase on-the-job accidents

Yet a close look at recently published workplace safety data
demonstrates these claims to be specious at best.

According to annual data published by the federal Bureau of Labor
Statistics, the number of fatal workplace injuries nationwide has
fallen steadily in recent years, dipping from a modern high of 6,632
in 1994 (two years prior to the passage of Prop. 215 in California,
the nation's first medical cannabis legalization law) to a modern low
of 4,551 in 2009. Specifically, workplace accidents fell 20 percent
between the years of 2007 and 2009 alone -- years when both the use of
medical marijuana as well as self-reported recreational pot use
experienced significant upticks.

Both California and Colorado have experienced a surge in the number of
certified medical marijuana patients in recent years, and workplace
fatalities decreased in 2009, the report found. Ditto for Washington,
another state with a decade-long experience with medical cannabis
legalization.

State-specific data from Oregon, which like California and Colorado
has both medicalized and decriminalized cannabis, indicates a similar
trend. Statistics compiled by Oregon Department of Consumer and
Business Affairs found that rates of workplace illnesses and injuries
for 2009 were at "the lowest (levels) ever recorded." In fact, since
Oregon voters have approved the legal use of medical cannabis (the law
went into effect in December 1998), the percentage of
illnesses/injuries per 100 full-time workers has fallen from 7 percent
to just over 4 percent.

So does this mean the public's increased use of cannabis is making
America's workplace safer? No, but at the very least it belies the
myth that pot smokers -- and medical cannabis patients in particular
- -- are in any way undermining workplace safety.

Nonetheless, courts in many of these same Western states continue to
rule in favor of workplace drug testing programs that arbitrarily
discriminate against employees who use in compliance with state law
while off-the-job.

These rulings present patients with a Hobson's choice: work or
medicate.

Yet according to a recently published review in the scientific journal
Addiction, it is unlikely "that heavy cannabis users represent a
meaningful job safety risk unless using before work or on the job."
Further, the review reported that urinalysis testing, in particular,
"has not been shown to have a meaningful impact on job injury/accident
rates." In short, the science rebukes the notion that any responsible
marijuana consumer should be sanctioned for their off-the-job pot use,
much less state-authorized patients.

Unfortunately, as long as marijuana remains illegal for the majority
it is likely that the courts in either Oregon or elsewhere are going
to continue to uphold "separate but equal" standards for pot patients.
Only by legalizing and regulating cannabis for all adults will we see
an end to the practice of pharmaceutical discrimination in the workplace.