Safety and OSHA News

Post-injury drug test is positive for pot: Can company fire worker?

An employee had a license to use medical marijuana. After he was injured at work, he tested positive for pot. The employer has a drug-free workplace policy. Can the company fire the worker?

Michael Swaw worked for Safeway at its beverage plant in Washington state. After a workplace injury, he tested positive for marijuana.

Swaw says he used the pot after hours under a valid Washington state medical marijuana prescription.

Safeway has a drug-free workplace policy which prohibits “testing positive for a controlled substance on the job or on company premises.” Controlled substances includes “all chemical substances or drugs listed in any controlled substances acts or regulations applicable under federal, state or local laws.”

The company fired Swaw who then sued for employment discrimination on the basis of disability.

Safeway argues the Washington law provides that employers have no duty to accommodate medical marijuana in drug-free workplaces. The company successfully moved the case to federal court.

The court agreed with Safeway that state law didn’t require the accommodation of workers with medical marijuana licenses, even if it’s being used off-site to treat an employee’s disabilities.

Swaw argued he was disciplined more severely than employees who were intoxicated with alcohol.

But the court said there’s no comparison between being under the influence of alcohol and using pot because marijuana is a Schedule I controlled substance which is illegal under federal law, and alcohol isn’t.

Swaw also argued this was a case of retaliation for telling his employer that he used medical marijuana. The court rejected that argument also.

The federal court threw out Swaw’s lawsuit against Safeway.

This case now joins others in which courts have said that, even if marijuana is used legally under certain state laws, employers can still enforce their drug-free workplace rules:

  • The Washington state Supreme Court previously ruled that a company could legally fire a customer service representative who tested positive for pot even though she had a prescription for medical marijuana, and
  • The Colorado Supreme Court ruled Dish Network didn’t violate state law by firing an employee who had a state license for medical marijuana.

What do you think about the court’s decision? Let us know in the comments.

(Michael Swaw v. Safeway Inc., U.S. District Court Western District of Washington, No. C15-939, 11/20/15)

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  1. The courts FINALLY got it right! I’m sure we’ll see many more challenges as states move to legalize pot, but I’m glad this one is a done deal!

  2. But should a company bwe forced to record the injury if an employee comes to work with THC in their system violating the company drug free policy?

    • Kevin Lawson says:

      Of course you should! We have a responsibility to everyone around us to provide a safe work place and that includes dealing with those who choose not to comply with Federal Law. You will never get the “free pass” your looking for!

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