Can I Still Fire Someone for Marijuana Use?

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Employers frequently inquire as to whether they can discharge an employee for marijuana use in Washington, a state which allows for legal medical and recreational use of marijuana, and we affirm that they can do so if acting in accord with their stated policies and if applied in a non-discriminatory manner.  In 2011, the Washington State Supreme Court held that the state Medical Use of Marijuana Act does not provide a civil cause of action for wrongful termination based on the employee’s authorized medical marijuana use, Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 257 P.3d 586 (Wash. June 9, 2011.

A second Washington court has reiterated this position, holding that an employer lawfully may terminate an employee for using marijuana, even when the employee had a prescription and used it off-duty. Swaw v. Safeway, Inc., No. C15-939 (W.D. Wash. Nov. 20, 2015).

Employee Swaw tested positive for marijuana due to the use of medical marijuana outside of work, subject to a valid prescription. Safeway had conducted the test after a work-place injury, and consistent with its written policy.  Safeway terminated Swaw for testing positive for a controlled substance on the job or on company premises, pursuant to its drug-free workplace policy. Safeway’s policy defined “controlled substance” to include “all chemical substances or drugs listed in any controlled substances acts or regulations applicable under federal, state or local laws.”

Swaw brought suit, alleging disability discrimination (his off duty marijuana use was subject to a valid prescription) and disparate treatment (he claimed to have been treated more harshly than employees who had been intoxicated at work).

The Court dismissed these claims, holding that Washington law does not impose upon employers a duty to accommodate medical marijuana in drug-free workplaces. Moreover, unlike alcohol, marijuana remains a controlled substance that is illegal under federal law. Because users of an illegal intoxicant are not a protected class, the employee could not state a claim for employment discrimination on the basis of a disability.

About the Authors

Karen Kalzer

Ms. Kalzer practices employment and education law with an emphasis on defending complex litigation for communities of faith, non-profits, schools and private employers.

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