Safety and OSHA News

Can pot-using worker be fired in medical marijuana state?

Fact: 16 states and Washington, DC, have laws that allow the medical use of marijuana for patients with fatal diseases or chronic pain. What’s not as clear: How these laws impact workplace drug policies. Now, another state court has weighed in.

Of course, workplace safety is often one of the top reasons used by companies for having drug-testing and zero-tolerance policies.

Jane Roe, a resident of Washington state, suffered from debilitating migraine headaches that caused chronic pain, nausea, blurred vision and sensitivity to light. Conventional medications didn’t provide significant relief.

Roe got authorization from a doctor to possess marijuana for medical purposes. She began using pot in compliance with Washington’s Medical Use of Marijuana Act (MUMA).

The medical pot alleviated her headache pain with no side effects and allowed her to care for her children and to work.

TeleTech offered Roe a position as a customer service representative in Bremerton, WA. The offer was contingent on the results of a drug screening. TeleTech’s policy stated that failing the drug test would result in ineligibility for employment.

Roe started a training program with the company, but when the drug test came back positive for pot, TeleTech terminated her.

Roe sued the company for wrongful termination. She claimed her firing was in violation of MUMA.

The company asked the court to throw out the case. It argued MUMA doesn’t provide employment protections to medical marijuana users.

In TeleTech’s view, MUMA has a narrow purpose: to provide users and doctors with a defense against state drug laws.

The trial court granted TeleTech’s motion to throw out the case. Roe appealed to the state supreme court.

What did voters intend?

Among the arguments used by Roe’s attorney on appeal was that when voters approved MUMA, they intended to prohibit the firing of an employee for authorized use of medical marijuana.

The co-drafter and campaign manager for the measure which was approved in 1998 testified it was his intent for the measure to provide employment protections.

But the Washington Supreme Court said the language in MUMA “does not regulate the conduct of a private employer or protect an employee from being discharged because of authorized medical marijuana use.”

In fact, there’s very little said about employment in the law. It only mentions that, “Nothing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment.”

The court’s ruling: TeleTech had the right to fire Roe.

Now that the state’s highest court has spoken, medical marijuana advocates are calling for Washington’s law to be amended to provide employment protection.

Note: Roe filed her lawsuit under a pseudonym because medical marijuana use is illegal under federal law.

What do you think about the court’s decision? Should the law be amended? Let us know what you think in the Comments Box below.

(Roe v. TeleTech Customer Care Management, Supreme Court of the State of Washington, No. 83768-6, 6/9/2011)

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  1. Dawn Harris says:

    1. The use of medical marijuana should fall within other prescrition drugs. The use of a prescribed drug is useable at work providing it does not affect your ability to do your job. 2. The new employee knowing that she was unable to pass a drug test, did not disclose the use of medical marijuana; therefore, the employeer may have then reviewed the employee as a risk. 3. The MUMA should be ammended; however, it should limit the types of employment that a person can have becasue the safety of all employees comes first and it should be required to be disclosed at the time of hiring and if prescribed while employed

  2. David Losey says:

    Medical Marijuana? I’m not sure that a person legally using marijuana can perform their dutiies as required. Once a person has gotten use to the effects of marijuana, will they need to increase their use, and will it begin to effect that person in a way that may indanger other employees. The long term use has not been proven to allow mental stability. I would not trust a person on medical marijuana use to drive for me, just as I would not allow a person legally taking many other pain control medications. If medical marijuana is made legal in my state, I will change the way I look at the qualifications of applicants for the job of transporting LIVE PASSENGERS.

  3. Jason F says:

    She apparently was informed that she would be subject to a drug screening. Everybody knows, unless you are just plain stupid, that a drug screen is testing for illegal (marijuana) drugs. Well, she failed the test and was fired. End of story…see ya!

  4. Peenut Dog says:

    Absolutely no amendment in this case. She knew when she applied that to fail the drug test would cause the loss of the position and she followed through anyways. Was it her intent to set the company up? No one should be above the rules or the laws for that matter. She should have to pay the court fees and lawyer fees for both sides for wasting the companies time and money. Who wants a stoned out person in customer service anyways? REALLY?!@#$

  5. Steve W says:

    First of all I feel that a new hire should tell a Employer prior to employment of ANY prescription that may show up in a drug screen. About the employer ability to terminate the employee, if thay have a ligitamate reason for using MM (medical Marijuana), they should be able to prove that they are able to perform the work that they are hired for before taking any action. if then or at any time using MM they fall short of diong their assigned duties the employer should be able to start corrective action process.

  6. Miss Safety Girl says:

    Seems like Roe is the forefather of a new era, as they were before in Roe vs. Wade. This is a tough call. I believe she has a legitimate complaint, had she disclosed her medical use. Realistically if company policy is such, then I would be inclined to believe she knew this going in. I smell a discrimination law suit on the horizon. She could be considered handicapped without the “medication”. If she was prescribed this medication by a doctor just as I have Calcium for weakening bones, there should be no difference. Again, it was her job to disclose this information, and quit wasting tax payers money on a law suit that she could had avoided had she read the policies and disclosed the information up front. Just my opinion.

  7. Where medical marijuana is legal according to State law, employees should be accomodated to the extent workplace safety is not compromised. As in the subject case, the use of medical marijuana is what is enabling the employee to work in the first place. For a customer representative, workplace safety concerns are likely minimal. The use of other medications (e.g., strong pain killers for back pain) do not result in dismissal, yet can result in more severe mental impairment than marijuana.

  8. Jack C. says:

    It does not belong in the workplace. The company has to protect all of their employees and being under the influence of any drug legal of illegal is unsafe. Is she allowed to drive to work or home from work under the influence? That would permit her to do that also wouldn’t it? I hope not because now she is putting more people and families in danger with her operating a vehicle while under the influence and not just co-workers. Why does she and anyone else like her think their headache is more important than someone else’s life???? Selfish, greedy, arrogant….. It’s all about them.

  9. I like the points made by Dawn and Miss safety Girl. The law is what it is and she should have mentioned what her handicapp is. I could make the difference from a stoned out person or a person trying to get a job and maintain a good living. If the doctor gives a prescription and the person can work without using heavy equipment or working around equipment that doesn’t endanger others than they should be able to be employed or would you rather they be on disability and drain the already drained Social Security service?

  10. Susan Galbraith says:

    If a) the state’s medical marijuana law is intended to approve marijuana as a prescription medication and b) employees are allowed to work while under the influence of their prescribed medication, then it seems reasonable for the employee to argue that she should be allowed to work while under the influence of marijuana.

    There are jobs I would not want people to do while they are taking prescription pain killers and other jobs in which the risk of property damage, personal injury, or damage to business reputation is very low. I am not very concerned with whether the drug is legal; I would focus on the nature of the work and the ability of the worker to function.

    As a customer, I would rather not deal with a customer service rep who is working during a migraine headache. I think a service rep is much better able to the stress of negotiating with unhappy customers when not in pain. As a matter of fact, it’s hard to imagine any job that would be better done by a person who is in intense pain than be a person who is pain free. On the other hand, if someone is in such pain that they cannot work without drugs (whether the drugs are in the form of a pill or a joint) I might rather they take a sick day.

  11. Peenut Dog says:

    Every person has the right to work and should work. However there are many positions that an impaired person should not perform. If a person is on marijuana prescribed or not they are impaired. I am all for legalization for medical uses, but those people should be aware going into it that employment will be limited to various positions. Common sense
    We don’ t know and hope that she did not go into this with the intent to get compensation. She should have to pay the fee’s the company incurred to fight this.

  12. I feel if someone is medicaly prescribed the use of pot or any drug , the Physician who wrote the script should be responsible for the correct or reasonable dose written. Any person can legally or illegally consume and abuse substances. This person did it the correct and legal way.How can she be fired unless her performance indicated termination ? If this prescription keeps her functioning as a productive employee why would the employer choose to terminate. As a manager of a medical facility I have seen multiple staff abuse substances in the workplace. This is very fragile situation as there can be licensed proffesionals who can lose their career if this is not handled correctly. They are not usually terminated on the first occurance. Help is usually the initial response upon discovery of abuse.These are abusers in the medical proffesion. Although they are licensed proffesionals abuse inflicts all people and I feel abuse is the real area that the employers should be looking at.

  13. Interesting as to how many responders think that just because she tested positive she was under the influence. Just shows how ignorant most of America is regarding this substance.

    How the law was written vs how it is interpreted can be a major problem when changing anything that we have been force feed our entire life.

    My personal view is these laws are there in to protect the person, In their personal and professional life. If that has not been provided then the law(s) indeed need to be amended and expanded to explicitly cover the areas it is intended to.

    There was a time not long ago when ALL drugs were obtainable from the corner drug store.

    I would rather be driving next to someone who is high on marijuana than drunk any day.

  14. I agree with you Susan> our policy is if you have a medication our HR director consults with our Occ. Med. physician to determine whether you can reasonably perform your duties under the influence of whatever the medication.
    On the other hand our policy states that the only use of marijuana has to be in the prescription form of Marinol and has to be under the FDAs approved uses (ie. Aids, chemotherapy or glaucoma).
    We need to treat everyone fair and stick to the facts. Depending on the tasks performed or the job duties the employer should be able to determine whether they should allow any medication and in what quantity. Some people can have a severe reaction to over the counter benadryl (intense drowsiness) while others can perform perfectly fine with the same dose.

  15. If she had a migraine she would not be at work and since the marijuana was prescribed to help her through migraines, she shouldn’t have any reason to use it prior to or at work and what she does on her own time should not be any concern of her employer.

  16. Mitch Stillman says:

    Just because she failed the drug test does not mean she ever came to work high. If she smokes once she gets home from work and is not at work under the influence, and she is using it under a doctors orders, she should not have been terminated. Marijuana shows up for 30 days in urine so she could have smoked 30 days ago on vacation and still have been terminated even though she never used it at work. If an employer has probable cause that the employee is impaired – whether it be on prescription drugs, alcohol, synthetic marijuana (which will not show up on a drug test and is readily available everywhere), then they have every right to fire an employee – period. If you think this is a problem wait… the real problem is and will be “Bath Salts” which are completely legal Meth/Cocaine and available everywhere. No one is testing for them. Mark my words – a huge epidemic of legal designer drug use is coming… medical marijuana is the least of a companies worries!!!

  17. A simple disclosure during the initial interview would have allowed for some research, and avoid a (pardon the pun) big headache!

  18. Please note:
    With a urine drug test for marijuana – cannabis can be detected 2 to 7 days after use, up to >30 days after heavy use and/or in users with high body fat!
    So if she took her prescribed medical marijuana on her own time on Saturday – when she is not working and then was tested on Thursday she could test positive but not be under the influence.

    If she told HR she using medical marijuana before the test would she still be offered the position? Would she had been fired anyway?

  19. As an employer I would not allow any drug to be used that could endanger the employee or their co-workers. I feel that marijuana falls in this catagory. Your not supposed to drive a vehicle while under the influence, you can be ticketed or arreseted for driving under the influence. If you have ever worked next to someone taking prescription pain killers or smoked marijuana you know they are not able to function normally. I feel for people that have these type of ailments, but OSHA requires employers to provide a safe work enviornment for it’s workers.

  20. Eventhough I am aginst drug usage, and I believe that any prescribed drugs affect each individual differntly and the efect various, but I believe the MUMA should be amended.

    We are prescribed many different types of medication that clearly state on the presciption to not operate heavy machinary, do not drive or etc… but since it does not show in the urine test and the work place cannot identify it, then it is OK to be at work…. it should be the same with marijuana.

    Many antidepression drugs has it effect such as mood swing, dizziness, comprehenton problem, blurry vision, but that does not get an employee fired….even though it may be hazardous to the work place….

    Let’s get MUMA amended in the way that states the same for all other prescipbed drugs, including medical marijuana users.

  21. Susan Galbraith says:

    I agree that the urine test is revealing information about this person’s activities for the past week or longer, including time that is private and should not be the employer’s concern. Employers should have a right to fire people who aren’t doing their jobs properly, but not a right to fire people over activities that occur outside the workplace.

    Urine testing is becoming more and more prevalent, but people who know they will have to take a urine test can hide their abuse of alcohol, prescription drugs, even cocaine or heroin by doing without for a short time. The people who get caught are the pot smokers, who in my experience are much less likely to be problematic employees than boozers or coke heads.

    The biggest beneficiaries of widespread urine testing are the testing companies, who make huge profits for providing a lab test that has almost no intrinsic value. I think it is stupid that so many employers require this test for low-level employees. People at management level (and the politicians who promote urine tests for people who ask for social services) can create a lot more havoc in the world than the folks at the bottom of the pecking order, but are rarely if ever subjected to this intrusive testing.

  22. xdrillsgt says:

    Let employers make their own decisions. I am tired of paying for laws to be made or even debated on behalf of a group of people who have a “special” need or agenda. I feel an employer should have the right to hire and fire as they see fit. Just as the worker has the right to quit as he/she sees fit. Nobody owes anybody the right to work. It is a privelge and we somehow have forgotten this in America.

  23. Sue, Occup. Health Nurse says:

    Each situation of an individual using a medication (and marijuana in this case is prescribed as a medication,) demands investigation of the medication, its effects, side effects, as well as the job duties of the individual. If the position is safety sensitive, there may be justifiable concerns.
    However, this individual was a customer service rep; I assume duties were phone communication and good judgment. If after a probationary period, it was shown that the individual’s performance was not satisfactory, then discipline/termination might follow.
    Anyone who takes a drug test and whose test (initially positive,) is reviewed by an MRO, would be questioned about their drug use. If a legitimate prescription were proffered, the test would be decisively rendered negative.

  24. So, the law gets ammended to protect our mmu’s job. The next day, she fatally injures somebody in the employee parking lot. Maybe her fault, maybe not. She, however, tests hot for pot. Who wins the law suit that the victim’s family files against the company?

  25. There should be no problem with this. I take prescribed hydrocodone for chronic pain daily, and work. Without the medication I would be disabled by arthritic pain, furthermore I am only 52. Would you rather I be deemed permanantly disabled and collect SS disability payments or work? MM is a prescription like any other. The problem with the 0 tolerance for “illegal” drug use is that with marijuana as already stated, remains in the system whether or not someone is under the influence. But under the influence in this instance is providng the means to function and maintain gainful employment. I agree she should have disclosed to the prospective employer but my guess is she would not have been hired for the position.
    If the prescription drug, and in this instant it is a legal drug, does not impair the ability to perform job functions there should be no issue.

  26. Peenut Dog says:

    Come on now. The effects of marijuana remain for days. Maybe not the immediate head high that most look for but the effects on memory and judgement do. Even at small levels there are still effects. Knowing this means a person using within several days will be impaired at work.

  27. Companies are under OSHA which is federal. MM is not legal under federal law, therefore, Sue, Occup. Health Nurse the prescription is not legitimate. Jane Roe needs to find a new career that will allow her to do what she needs to do for her headaches. xdrillsgt is correct… Working is a privilege, not a right. To say that a drug can be in your system but not be under the influence is like saying, “She’s a little bit pregnant”. May be it’s wearing off while she is delivering, but until the baby is delivered she is still under the influence of being pregnant…. right? Come on; quit splitting hairs to be “right”. Test will show how much THC is in your system and there are permissible limits because there is a level of THC in all vegetation and there will be detection for anyone who eats vegetables.

  28. Susan Galbraith says:

    Peenut Dog said –

    “Come on now. The effects of marijuana remain for days. Maybe not the immediate head high that most look for but the effects on memory and judgement do. Even at small levels there are still effects. Knowing this means a person using within several days will be impaired at work.”

    Okay, I’ll buy that. And if everyone in the world had identical capabilities and all jobs had identical requirements, that might bother me. However, people have (surprise!) different capabilities and jobs have different requirements. When my father was in his late 80’s he used to complain that his mind didn’t work as well as it used to. My response was, “Yes, if you live long enough you will be of normal intelligence.”

    Employers have considerable freedom to hire or not hire or fire (within legal limits) who they choose, and should have absolute freedom to fire or not hire people who don’t do a good job. We have not been provided with any information about whether this woman was capable of doing the job. All we know is that she has migraines and has a prescription for medical marijuana. She might be a brilliant and highly capable individual, or she might be a neurotic loser. It’s unfortunate that these two meager data points can have such a controlling effect on a person’s life.

  29. This one’s a no-brainer. Employers are responsible for providing a safe and healthful work environment. That includes ensuring their employees are able to perform their jobs in a safe manner. If an employee cannot perform their job in a safe manner due to the influence of a legal drug, then they need to take sick leave or leave without pay. The reasoning is simple. Employees using marijuana on a chronic basis do not always show outward signs of impairment until after an accident occurs. At which time the employer is held responsible. Bottom line: Get rid of marijuana users in the work place as they create an unsafe work environment.

  30. Wickedwahine says:

    Prior to taking a drug screen the lab will ask you, “do you take any prescibed medication?” They also will ask, “do you take any non-prescribed medication or drugs or do you drink alcohol?” It is at this point where she had the ability to identify what she was taking and show her prescription to the lab. Then, her tests would not have come back deceitful or pass/fail. She identifies it shows proof therefore NOT ILLEGAL! I know this as I have a child who did this and works for Target with no problems at all even the drug screen. The reason for the problems is that she did not identify her drug nor that she was prescribed this drug therefore her tests are just that Illegal and yes fire her. On the other side I have no problem with it as long as there is careful consideration as to what she will be performing. Next time identify it in advance and bring your prescription.

  31. The concern here is not marijuana but the use of any form of medication being used by an employee on the job and the responsibilities and liabilities if an injury occurs. The medications alledged proper dose is influenced by the physical characteristics of the individual and one’s ability to absorb the elements to a level where they do not lose their sense of control or judgement to perform work safely. Any employee who is on the job and needs to take a medication that has been known to impair some type of behaviorial condition should communicate this personal medical requirement to their employer. The employer should try to find some type of work for the employee that will not place the company or employee in a compromised situation or loss of a days pay. Work and injuries caused by a medication is not a game of russian roulette.

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