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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?
 
 
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"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. 

Paul Armentano is the deputy director of NORML (the National Organization for the Reform of Marijuana Laws), and is the co-author of the book Marijuana Is Safer: So Why Are We Driving People to Drink (2009, Chelsea Green).
 
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