Academic journal article Southern Law Journal

Medical Marijuana and Employment Discrimination

Academic journal article Southern Law Journal

Medical Marijuana and Employment Discrimination

Article excerpt

I. Introduction

Over 400,000 people are currently using marijuana for medical purposes.1 In most cases, state law permits the use. Even though state law permits the use of marijuana for medical purposes, the use of marijuana for any purpose is still prohibited by federal law. In many cases, the users are actively employed or seeking employment. These applicants and employees are protected by state and federal laws against discrimination based on race, color, national origin, gender, religion, disability, age and military service. An issue exists, however, as to whether the use of marijuana for medical purposes is also protected.

This paper examines the relationship between state laws that permit the use of marijuana for medical purposes and the ability of an employer to discharge an employee for marijuana use. The extent to which medical marijuana laws might be used by a discharged employee to support a claim of employment discrimination is examined. This paper addresses the issue by summarizing the federal law prohibiting marijuana use, by discussing the state laws that permit use of marijuana for medical purposes, by examining the federalism issue thus created and the federal response to state medical marijuana laws, and by examining four state court decisions directly addressing the issue of discrimination against medical marijuana users. We conclude by discussing the future of the medical marijuana employment discrimination debate.

II. The Federal Prohibition Against Marijuana Use

President Nixon officially launched the war on drugs in 1970. One result of this effort was the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II of which is the Controlled Substances Act.2 The purposes of the act were to consolidate various drug laws into a comprehensive statute, to provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and to strengthen law enforcement tools against international and interstate drug trafficking.3 To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense or possess any controlled substance except as authorized by the Controlled Substances Act.4

All controlled substances are classified into five schedules, based on their accepted medical uses, their potential for abuse, and their psychological and physical effects on the body.5 Marijuana is classified as a Schedule I substance based on its high potential for abuse, no accepted medical use, and no accepted safety for use in medically supervised treatment.6 This classification renders the manufacture, distribution, or possession of marijuana a criminal offense.7 Despite efforts to reclassify marijuana, it has remained a Schedule 1 drug since the enactment of the Controlled Substances Act.8

The same factors, in varying degrees, are used to categorize drugs in the other four schedules. For example, Schedule II substances also have a high potential for abuse which may lead to severe psychological or physical effects, but unlike Schedule I drugs, they have a currently accepted medical use.9 Because the controlled substances listed in Schedule II through V have currently accepted medical uses, the Controlled Substances Act authorizes physicians to prescribe those substances for medical use provided that they do so within the bounds of professional practice.10 By contrast, because Schedule I controlled substances are deemed to lack any accepted medical use, federal law prohibits virtually all use of those drugs.11

The Controlled Substances Act also addresses the relationship between 12 * the act and state law. Section 903 provides:

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and the State law so that the two cannot consistently stand together. …

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