Defense goes up in smoke — discharge for medical marijuana use upheld in Washington State
On June 9, 2011, the Washington State Supreme Court unanimously held that Washington’s Medical Use of Marijuana Act (“MUMA”) does not provide a private cause of action for discharge of an employee using medical marijuana and does not support a claim for wrongful discharge in violation of public policy. Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, No. 83768-6, 2011 Wash. LEXIS 393 (June 9, 2011).
MUMA, enacted by voter initiative in 1998, provides affirmative defenses against criminal prosecution for physicians for prescribing medical marijuana, and for qualified patients and their designated primary caregivers for engaging in the medical use of marijuana. MUMA explicitly provides that Washington State employers are not required to accommodate “on-site” medical marijuana usage in any place of employment.
The Roe v. TeleTech decision
Plaintiff “Jane Roe” (who sued under a pseudonym because medical marijuana usage is illegal under federal law) alleged that she suffered from debilitating migraine headaches. Roe reported that, after trying several conventional treatments to no avail, she finally sought and received a medical marijuana prescription that enabled her to use medical marijuana in compliance with MUMA.
Several months after Roe received her medical marijuana prescription, defendant TeleTech Customer Care Management (Colorado), LLC (“TeleTech”), a business process outsourcing company based in Colorado, offered Roe a position as a customer service representative. TeleTech’s offer was, among other things, contingent on a negative drug test result in accordance with TeleTech’s drug policy. This drug policy, provided to Roe at the time she applied for employment, emphasized that non-compliance would result in ineligibility for employment with TeleTech. Roe acknowledged TeleTech’s policy, but informed TeleTech of her usage of medical marijuana and offered to provide TeleTech with a copy of her medical marijuana authorization; TeleTech declined.
On October 5, 2006, Roe took the required drug test. She started training at TeleTech and started work. On October 10, TeleTech learned Roe had tested positive for marijuana. TeleTech’s drug policy did not make an exception for medical marijuana. On October 18, TeleTech terminated Roe’s employment.
Roe then sued TeleTech, claiming her termination violated MUMA and further violated public policy allowing medical marijuana use in compliance with MUMA. The trial court granted TeleTech’s motion for summary judgment, and the court of appeals affirmed. Roe v. TeleTech Customer Care Mgmt. (Colo.), LLC, 216 P.3d 1055 (Wash. 2009). The Washington Supreme Court affirmed the lower courts based on the unambiguous language of MUMA, holding that “MUMA does not provide a private cause of action for discharge of an employee who uses medical marijuana, either expressly or impliedly, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.” Opinion at 2.
In reaching this conclusion, the court first analyzed whether MUMA prohibited an employer from discharging an employee for MUMA-authorized medical marijuana use. The court concluded that the language of MUMA did not regulate the conduct of a private employer or otherwise protect an employee from being discharged because of off-duty medical marijuana use. Rather, the court found that the purpose of MUMA was to provide medical marijuana users and prescribing physicians with an affirmative defense under Washington State criminal drug laws. Thus, the court concluded that MUMA did not provide a private cause of action against employers.
Having found that the language of the statute was unambiguous, the court could have stopped right there. However, the court went on to analyze Roe’s “extrinsic evidence” arguments. The court found unpersuasive a declaration submitted by Timothy Killian, a co-drafter and campaign manager for I-692 (MUMA’s designation during the initiative campaign), stating that “MUMA was intended to broadly protect the right of qualifying patients to use medical marijuana and to protect the ‘privilege’ of employment.” Opinion at 11. The court noted that no voter could have been aware of the purported legislative intent ascribed to MUMA by Killian in 2008 when voting on the initiative a decade earlier. The Court also noted that, although a voter’s pamphlet could provide extrinsic evidence of voter intent, in this case, the only reference to employment in the voter materials was in the “Statement For” I-692, where proponents assured voters that MUMA would prohibit marijuana use in the workplace. “Nothing in the 1998 Voter Pamphlet demonstrates that an average voter would understand the proposed initiative to offer employment protections to medical marijuana users.” Opinion at 16.
Next, the court analyzed whether public policy concerns underlying MUMA supported a wrongful discharge action in violation of public policy. The court noted that Roe’s claims did not fall within any of the generally recognized categories for such claims in Washington State, which arise when the employee is fired for: (1) refusal to commit an illegal act; (2) performance of a public duty or obligation (i.e., jury duty); (3) exercise of a legal right or privilege (i.e., filing a workers’ compensation claim); or (4) reporting employer misconduct (i.e., whistleblowing). Opinion at 20. The court also noted that to prevail on a public policy wrongful discharge action, the plaintiff must first prove the existence of a clear public policy—“an authoritative declaration of the nature of the wrong.” (Opinion at 21). The court held, after analyzing this predicate element, that “Washington Court decisions do not recognize a broad public policy that would remove any impediment to medical marijuana use or impose an employer accommodation obligation,” (Opinion at 22) and, thus, MUMA does not proclaim a sufficient public policy to give rise to a tort action for wrongful termination for authorized use of medical marijuana.
Finally, a particularly notable portion of the court’s decision concerned a change to MUMA enacted after Roe’s termination. The court stated as follows:
In 2007, the legislature stated its intent to clarify the MUMA “so that the lawful use of [medical marijuana] is not impaired ….” [Washington] laws of 2007, ch. 371, § 1. The legislature added “on-site” to RCW 69.51A.060(4) so that it now provides in relevant part, “[n]othing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment.” Opinion at p. 13. [Underscored emphasis added]
Roe argued that this “clarification” shows that the MUMA limitations on the duty to accommodate only apply to on-site medical marijuana use and thus off-site medical marijuana use must be accommodated. The court could have accepted this argument or rejected it as a later change in MUMA that was not applicable at the time of Roe’s termination. It did neither. Instead the court held that the new language “on-site” was simply redundant because MUMA already “expressly disallowed any accommodation obligation in any place of employment.[emphasis now].” Opinion at p. 14. This conclusion would seem to contradict the longstanding maxim of statutory interpretation “expressio unius est exclusio alterius”—the express mention of one thing implies the exclusion of all others. On the other hand, one can argue that if the legislature wanted to require accommodation for off-site medical marijuana use, it would have expressly said so.
Other related case law
Interestingly, the TeleTech decision is consistent with California law, although the leading California decision interpreting the state statute is based on somewhat different grounds than those found in TeleTech. See Ross v. RagingWire Telecomms., Inc., 42 Cal.4th 920 (2008) (holding that proponents of California’s Compassion Use Act of 1996 intended a delicate balance and presented only “modest objectives” to voters, which do not support a broad reading of the act that would include employment protections not found in its text).
In both TeleTech and RagingWire, the courts thoroughly analyzed the specific language of the medical marijuana law enacted in each state, and in both cases chose to interpret narrowly the intent of the laws. Thus, we may now be seeing the start of a trend limiting the application of medical marijuana laws in the employment context. Of course, each such law would have to be analyzed based on its own specific language.
What steps should employers now take?
Despite the holding in TeleTech, before an employer determines that an employee can and should be terminated for medical marijuana use, it is important to consider a number of questions:
- Does an employer have a statutory duty to accommodate an employee’s underlying condition through the use of medical marijuana? In California, RagingWire found no duty to accommodate an underlying condition, because marijuana use is deemed to be use of an illegal drug. In Washington, this appears to be an open issue. TeleTech addressed only whether MUMA imposed a duty to accommodate, but did not consider whether such duty arises under the Washington Law Against Discrimination (WLAD). The WLAD does not exclude illegal drug use from coverage, as do the federal ADA and California FEHA.
- Do different drug testing standards apply for existing employees rather than applicants? Current Washington State case law is limited but generally supports an employer’s right to require drug testing of employees and applicants alike. California case law is more extensive and imposes greater restrictions on employee testing than on applicant testing. Will the Washington courts or courts in other states follow the California model in future cases?
- Is drug testing for non-safety-sensitive positions practical? Absent an affirmative legal requirement, employers should consider whether drug testing for non-safety-sensitive positions is a useful and cost-effective practice, and whether it makes sense from an employee relations and public relations standpoint. It is worth considering that a case like TeleTech took years to litigate, at substantial cost. Moreover, the practical implications of a strict prohibition do not always lend themselves to easy answers. For example, what position would an employer want to take with regard to an employee in a non-safety-sensitive position who is going through chemotherapy for cancer, who is performing at an excellent level, but who reports that it is only through the use of medical marijuana that she can keep nausea at bay and continue to work?
- Where will the law go next? While TeleTech and RagingWire do not provide protection for medical marijuana use in the workplace, social acceptance of medical marijuana use appears to be on the rise and it would not be surprising to see judicial decisions eventually follow suit. TeleTech and RagingWire also implicitly provide guidance to medical marijuana proponents on how to draft laws that would be more likely to protect medical marijuana use in the workplace. It would not be surprising to see such attempts be made.
- In any event, no matter how one answers these questions, employers should review their existing drug policies in light of the TeleTech decision, and be prepared to address and respond to medical marijuana use, and requests for reasonable accommodation, by both applicants and employees.