Washington Court Upholds Employee Termination for Medical Marijuana Use

Posted: December 29, 2015

On November 20, 2015, the U.S. District Court for the Western District of Washington upheld an employer’s right to terminate an employee for medical marijuana use. (See Swaw v. Safeway, Inc., No. C15-939 (W.D. Wash. Nov. 20, 2015)). The plaintiff – a former employee of the defendant – filed suit claiming employment discrimination under the Washington Law Against Discrimination. According to the allegations, the plaintiff possessed a valid state medical marijuana prescription for his medical condition, but was terminated after testing positive for marijuana following an injury on the job. The defendant maintained a drug-free workplace policy and claimed that Washington state law did not require employer accommodation for medical marijuana. Dismissing the plaintiff’s claims, the court found that there is no state law requirement to accommodate medical marijuana use when a drug-free workplace has been established regardless of whether the off-site medical marijuana use is to treat a disability. The court also cited the fact that marijuana continues to remain unlawful under federal law. Further, the court determined that the Washington Law Against Discrimination did not apply as medical marijuana use could not be a protected class under the law. Employers that conduct drug testing either in the hiring process or during employment are faced with many new laws pertaining to both recreational and medicinal use of marijuana by employees. Thus far, case law has largely sided with employers, providing leeway to establish and enforce drug-free workplaces. For example, a case similar to the above was addressed by the Colorado Supreme Court in June 2015. In that case, the CO Supreme Court found that the use of medical marijuana could not be considered lawful under Colorado’s “lawful activities statute” since it remains illegal under federal law. Accordingly, the employer did not violate the law when it terminated an employee who was a registered medical marijuana user following a positive drug test. Employers concerned with their drug-free workplace and drug testing policies should consult with qualified legal counsel to determine the best approach to these complicated issues.