June 9, 2011

Wash. Supreme Court agrees with PLF on drug free workplaces

By Wash. Supreme Court agrees with PLF on drug free workplaces

Author: Deborah J. La Fetra

The Washington Supreme Court this morning handed an important victory to the employers committed to a drug-free workplace. The issue in Roe v. Teletech was whether a patient authorized under state law to use medical marijuana could sue an employer who fired her for failing a drug test. The court held that the state’s medical marijuana law, which provides immunity from criminal prosecution for possessing and using marijuana with a prescription, does not require employers to hire or employ workers who test positive for marijuana, even though their acquisition of the drug is legal under the statute.

To be clear, this was not a case about whether marijuana should be legal—a matter on which PLF has never taken a position—but about whether private employers have the right to refuse to employ people who use drugs that could very well impair their skills and make them dangerous to others. That’s a serious concern, because history abounds with cases of employers found liable when their employees were drove vehicles, operated heavy equipment, or performed other tasks under the influence of alcohol or drugs.  Faced with this very real danger of liability, employers must be free to cull job applicants whose alcohol or drug use raises a danger in the workplace, or to other employees or third parties.

The court ruled in favor of employers, and quoted PLF’s amicus brief at length in footnote four, on the question of whether the statutory language, which explicitly says that employers need not tolerate “on-site” marijuana use, implies that employers must tolerate off-site use:

Amicus Pacific Legal Foundation aptly addressed the logical fallacy of Roe’s argument. As amicus explains, when the major premise is a universal negative (employers are not required to accommodate on-site use), and the minor premise negates one aspect of the major (the plaintiff uses marijuana off-site), it is logically invalid to adopt as a conclusion the contrapositive (employers are required to accommodate off-site use). The argument is flawed for the additional reason that the major term—off-site use—does not appear in the major premise.

The court also considered whether voters intended the statute to offer employment protection to medical marijuana users and found that it did not, for the simple reason that nothing in the language of the statute or ballot materials supported the notion that the statute was that broad.  On this point, the Court relied on similar findings in Ross v. Ragingwire Telecommunications, a California Supreme Court in which PLF also participated as amicus (and about which I published this law review article).

In addition to the statutory argument, Roe claimed that her firing was wrongful termination in violation of public policy. But the Court rejected this as well, holding that the public policy that would support such a claim must be expressed in the laws of the state, and no law—not even the medical marijuana law—includes a policy of allowing medical marijuana use whenever and however a person likes. The decision again added a footnote relaying info from PLF’s brief, that the Washington Human Rights Commission has determined that it is not a reasonable accommodation to require an employer to violate federal law (as it would if it tolerated marijuana use).

Permitting employers to maintain a drug-free workplace, therefore, was not only a correct application of the text of Washington’s Medical Use of Marijuana Act, but demonstrated the compassion to all employees, clients, and customers who benefit from a drug-free workplace.

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