The Washington State Supreme Court has ruled that Washington’s Medical Use of Marijuana Act (“MUMA”) does not prevent an employer from discharging an employee for authorized medical marijuana use. (Roe v. TeleTech Customer Care Management (Colorado) LLC – links to Majority decision, Minority decision.)

MUMA was created as a result of a voter initiative in 1998. The statute exempts medical marijuana users from state criminal prosecution, if they obtain physician authorization and follow certain guidelines. MUMA does not trump federal law, which continues to prohibit even medically-prescribed marijuana use.

MUMA explicitly states that employers are not required to permit use of medical marijuana on the job. Before the Roe decision, however, it was unclear whether employers needed to accommodate medical marijuana use away from work.

The employee – who sued under the pseudonym “Jane Roe” –– suffered from debilitating migraine headaches. Roe began using medical marijuana at home in compliance with MUMA. She applied for a customer service job at TeleTech, contingent on the results of reference checks and a drug screening. The employer’s drug policy required all employees to have a negative drug test result, and emphasized that non-compliance would make the candidate ineligible for employment. Roe acknowledged the drug policy and of course tested positive for marijuana. (The standard urine test for marijuana can detect the byproduct of the drug for days or weeks after it last was ingested.) Although there was no evidence that Roe ever was impaired while on the job, the company declined to make an exception to its drug policy for medical marijuana, and terminated Roe.

Roe sued TeleTech, claiming that her discharge directly violated MUMA and also violated a clear public policy allowing medical marijuana use.

The Supreme Court ruled 8-1 in favor of TeleTech, holding that MUMA does not provide a claim for an employee discharged for use of medical marijuana, “nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.” The Court did not differentiate between on-duty or off-duty use.

Roe did not claim disability discrimination or assert that TeleTech failed to reasonably accommodate her need for medical marijuana, so the decision did not address those concepts. As the Court noted, however, the Washington State Human Rights Commission takes the position that “it would not be a reasonable accommodation of a disability for an employer to violate federal law, or allow an employee to violate federal law, by employing a person who uses medical marijuana.” The Court further commented that although employers could still be sued for wrongful discharge, the HRC will not investigate claims of discrimination due to medical marijuana use because federal law prohibits marijuana possession.

Although the Roe decision clarifies certain questions arising under MUMA, employers should continue to monitor the legal status of employees who use medical marijuana. This issue will particularly concern employers with multi-state operations, as some states may provide greater employment-related protections for medical marijuana users.

Employers should review existing company drug policies. Policies should prohibit use of drugs that are illegal under either federal or state law. Policies should also be carefully crafted as “zero tolerance” policies (that is, prohibit any detectable trace of illegal substances). Human Resources personnel should also be prepared to respond to medical marijuana issues, whether arising in the hiring stage or as a request for reasonable accommodation. Moreover, the organization must consistently apply the drug policy.

For more information on employee use of medical marijuana, please contact Foster Pepper’s Employment and Labor Relations Practice Group.