Academic journal article Case Western Reserve Law Review

Protecting Medical Marijuana Users in the Workplace

Academic journal article Case Western Reserve Law Review

Protecting Medical Marijuana Users in the Workplace

Article excerpt

Contents  Introduction   I. Marijuana Regulation Since the 1970s  II. Workplace Drug Testing III. Court Responses to Conflicting Federal and State       Marijuana Laws      A. The Risk of Federal Preemption         1. State Courts Have Come to Different Decisions about Whether             Federal Law Preempts State Medical Marijuana Laws         2. Federal Law Should Not Preempt a State's Attempt to Provide            Employment Rights to Its Medical Marijuana Patients      B. Even If Not Preempted, State Medical Marijuana Statutes Fail to          Adequately Protect Employees  IV. Some State Medical Marijuana Statutes Do Include       Employment Provisions   V. Statute Recommendation       A. Statute Language       B. Statute Analysis          1. Section (a)--Who and What is Protected by this Statute          2. Section (b)--When Medical Marijuana Use Is Not Protected by              this Statute          3. Section (c)--Respecting State Drug Testing Laws          4. Section (d)--Additional Protection for Employers Conclusion 

Introduction

Despite the fact that some states have legalized medical marijuana, disabled employees are being fired for using it. Gary Ross, disabled from injuries suffered while he served in the United States Air Force, began using medical marijuana after traditional medications failed to alleviate his pain. (1) Joseph Casias used medical marijuana to alleviate pain caused by sinus cancer and an inoperable brain tumor. (2) Brandon Coats, a quadriplegic, used medical marijuana to control painful muscle spasms caused by his paralysis. (3) All of these employees were fired when their employers found out that they used marijuana. (4)

How can someone be fired for using a drug that is authorized by state law? Normally, the federal Americans with Disabilities Act (ADA) would protect disabled persons that use legally prescribed drugs from employment discrimination that stems from that drug use. But the ADA does not protect users of illegal drugs, and marijuana is illegal under federal law. (5) Thus, the ADA does not protect disabled medical marijuana users when they are fired for violating workplace drug testing policies.

Medical marijuana users have tried suing their employers under the theory that state medical marijuana laws protect employees from the consequences of violating drug-free workplace policies. (6) But, in the absence of explicit statutory language granting employment protection to medical marijuana users, the courts refuse to rule in favor of the employees. Court decisions favoring employers place a substantial burden on medical marijuana patients--choosing between "giving up what may be their only source of income, or ... discontinuing] marijuana treatment, and try [mg] to endure their chronic pain or other condition for which marijuana may provide the only relief." (7) A clearly drafted statutory provision that prevents employers from using medical marijuana users' drug use as a reason to terminate them will alleviate the burden that employees currently bear.

Part I of this Note gives a brief history of marijuana regulation in the United States. Part II describes how drug testing works and why employers do it. And it presents some of the issues that the federal prohibition poses for employers and employees. Part III analyzes state court opinions that have addressed the question of whether employers may fire employees for off-site medical marijuana use that does not impair work performance. Every court thus far has ruled in favor of the employer, but some of the opinions and dissents acknowledge that the legislatures could amend their states' statutes to include employment protections for medical marijuana users. Part IV analyzes the strengths and weaknesses of the state medical marijuana laws that include some form of employment protection. Finally, Part V proposes statutory language that could be included in state medical marijuana laws to protect employees from termination simply because of their authorized use of marijuana. …

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