Arizona: Federal Judge Rules Medical Cannabis Patient’s Firing Violated State Law

MJLegalThe case is Whitmire v. Walmart Stores Incorporated

ARIZONA: A private employer acted improperly when it fired a state-registered medical cannabis patient for failing a urinalysis drug screen, a federal judge ruled last week.

United States District Judge James A. Teilborg opined that Walmart violated Arizona law by terminating an employee solely for testing positive for the presence of THC metabolites in her urine. The carboxy-THC metabolite is an inert breakdown product of THC which may remain present in urine for weeks or even months following cannabis exposure.

Under Arizona’s voter-initiated medical cannabis access law, an employer may not discriminate in hiring or firing based solely upon a patient’s “positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”

According to the US Department of Justice, urinalysis tests “detect drug use but not drug impairment. A positive test result … does not indicate abuse or addiction, recency, frequency, or amount of use, or impairment.”

In recent years, judges have similarly upheld patient protections in other jurisdictions, including ConnecticutMassachusetts, and Rhode Island.

The case is Whitmire v. Walmart Stores Incorporated.


cFor more information, contact Keith Stroup, NORML Legal Counsel, at (202) 483-5500.

 

Court: Marijuana’s Schedule I Status Does Not Justify Workplace Discrimination Against State-Qualified Patients

CONNECTICUT: A federal district court judge has determined that marijuana’s illicit status under federal law does not preempt statewide protections explicitly prohibiting qualified medical cannabis patients from facing discrimination in the workplace.

The defendant in the case, Bride Brook Nursing and Rehabilitation Center, argued that marijuana’s classification as a Schedule I drug under the US Controlled Substances Act provided a legal basis for its decision to rescind a job offer to a would-be employee after she failed a drug screen. United States District Court Judge Jeffrey Alker Meyer disagreed.

He wrote: “This lawsuit calls upon me to decide if federal law preempts Connecticut law. In particular, I must decide if federal law precludes enforcement of a Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. I conclude that the answer to that question is ‘no’ and that a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason.”

The ruling follows that of a similar decision in Massachusetts in July which determined that state-registered medical cannabis patients may sue a private employer for discrimination if they are fired for their off-the-job marijuana use.

The case is Noffsinger v. SSC Niantic Operating Company, LLC.

Massachusetts: Medical Marijuana Patients Afforded Workplace Protections

MASSACHUSETTS: State-registered medical cannabis patients may sue a private employer for discrimination if they are fired for their off-the-job marijuana use, according to a first in the nation ruling issued Monday by the Massachusetts Supreme Judicial Court.

Opining for the court, Chief Justice Ralph Gants determined that it is “not facially unreasonable” for employers to make exceptions to their substance abuse policies in instances where employees are using cannabis at home to treat a debilitating condition. “The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation,” he wrote.

The defendant in the case was fired on her first day on the job for testing positive for carboxy-THC on a company drug test. The former employee possessed a doctor’s recommendation to use cannabis to treat symptoms of Crohn’s disease and irritable bowel syndrome. Qualified patients may legally obtain cannabis in Massachusetts under a 2012 voter-initiated law.

The unanimous verdict reverses a lower court decision and is contrary to rulings in CaliforniaColoradoOregon, and Washington. In each of those states, justices ruled that employees had no legal protection if they were fired without cause for their use of medical cannabis.

“Patients should never have to choose between their heath and their job and for the first time, the courts are beginning to recognize that they shouldn’t have to do so,” NORML Executive Director Erik Altieri said. “It is our hope that courts in other jurisdictions begin to apply this same rationale to patients as well as to all adults who are using cannabis responsibly off-the-job in compliance with the laws of their states.”

The case is Barbuto v. Advantage Sales and Marketing LLC.

May 11 In Portland: “Don’t Go Up in Smoke” —Workplace Law for Canna-Businesses

OREGON:  As the cannabis industry expands, so do the number of workers in weed.  Managing a rapidly expanding organization can present a myriad of challenges for any new business, and business operators in the heavily-regulated licensed marijuana industry face additional complexities.  Employment law and the legal cannabis industry is the topic of  “Don’t Go Up In Smoke,” a half-day seminar exploring employment-related legal issues, including personnel management, pay practices, avoiding government investigations, and protecting your trade secrets and other confidential information.  The event, a production of the Oregon Entrepreneurs Network and sponsored by Fisher Phillips, takes place on May 11th, 11AM-4PM at The Cleaners at the Ace Hotel, 1025 SW Stark St., Portland.

Fisher Phillips attorneys from California, Oregon, and Washington, and a number of leading industry experts will explore these issues in-depth and provide practical tips for compliance:

Panelists

Alex Wheatley

Alex Wheatley

Attorney, Fisher Phillips

Alex is an attorney in the firm’s Portland office, specializing in representing businesses in the cannabis industry. He has worked with a number of growers, processors, and retailers to implement effective workplace policies and has represented businesses in the industry when they have received complaints and lawsuits. Alex gets great satisfaction helping canna-businesses comply with the law and protect themselves from exposure to lawsuits and administrative claims. Having worked with a number of employers in the industry, Alex understands the unique issues faced by such businesses and has experience solving the problems such businesses commonly face.

Ashley Preece-Sackett

Ashley Preece-Sackett

Executive Director, Ethical Cannabis Alliance (ECA)

ECA is a nonprofit and voluntary certifying body for cannabis/hemp labor and environmental best practices nationwide. Ashley holds a degree of Horticulture Science from Boise State University and is on the brink of two decades of experience in horticulture sciences. She co-founded Cascadia Labs, one of the leading cannabis analytical labs in the nation, as well as helped launch the Portland Chapter Women Grow networking group, which is still the largest-growing cannabis networking platform in the nation.

Clarence Belnavis

Clarence Belnavis

Partner, Fisher Phillips

Clarence Belnavis is a partner in the Portland and Seattle offices. He is a trial attorney with a primary emphasis in employment litigation, including disability, racial and gender discrimination, retaliation, sexual harassment, and wrongful discharge. He also represents employers in wage and hour claims, employment class actions, and traditional labor matters. Clarence routinely provides client trainings and speeches to cannabis industry groups regarding current and developing employment law issues in Washington and Oregon.

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David Rheins

Founder, Marijuana Business Association (MJBA)

The MJBA is the leading business organization in the fastest growing industry in America. The MJBA provides business intelligence, professional networking, and commercial opportunity for participants in the legal cannabis industry. David is a frequent speaker and moderator at Seattle Hempfest, CannaCon Shows, Cannabis Creative Conference, Cannabis World Congress and Business Expo, and a regular columnist for Freedom Leaf Magazine. A proven business leader with 30+ years of experience building and operating best-of-breed media and marketing organizations, David has an impressive track record as a senior executive for Rolling Stone, SPIN, I Village, Corbis, Time Warner and America Online.

Jason Geller

Jason Geller

Regional Managing Partner, Fisher Phillips

Jason Geller is the managing partner of the firm’s San Francisco office. Jason represents employers in all facets of employment law matters. Jason has extensive experience defending employers in federal and state courts, as well as in investigations by the Equal Employment Opportunity Commission (EEOC), the DFEH, United States Department of Labor (DOL) and the National Labor Relations Board (NLRB). In addition to defending his clients in litigation, Jason frequently counsels employers to assist them in avoiding litigation.

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Kara Bradford

Chief Talent Officer of Viridian Staffing

Kara co-founded Viridian Staffing in 2013, the first bona fide professional, full-service staffing, recruiting and HR consulting firm in the cannabis industry. Kara’s 15-year career has spanned multiple Fortune 100 companies and start-ups in a wide variety of industries where she specialized in Talent Acquisition, Workforce Planning, Employer Branding and Organizational Design. Kara has an MBA in Human Resources & Organizational Behavior and is PRC, CIR, and CSSR Certified.

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Neil Juneja

Founder, Gleam Law

Neil Juneja is the founder of Gleam Law, a cannabis-focused law firm with offices in Seattle, Washington and Portland, Oregon and is a licensed patent attorney. The majority of his practice focuses on trademark protection of cannabis brands in state and federal law. In addition, Neil has written numerous article on cannabis law and intellectual property as well as spoken at many events including in the National Mall in Washington DC and at the Seattle Hempfest. Some of Gleam Law’s notable clients include the first Seattle recreational marijuana retailer, several world-famous musicians branding cannabis products, and many publicly traded companies working in the cannabis industry. Neil has also appeared in Newsweek, Time Magazine, and on several documentaries for his work in the cannabis legal industry.

 

Colorado Supreme Court Upholds Firing Of Medical Marijuana-Smoking Dish Employee

COLORADO: The Colorado Supreme Court affirmed Monday a lower courts’ rulings to uphold the firing of an employee for using medical marijuana while not on duty.

The case involved Dish Network employee Brandon Coats, a quadriplegic who smoked marijuana at home to control seizures. Coats failed a random drug test in 2010 and Dish, citing its zero-tolerance policy of drug use, fired him.

Coats sued, but lost at trial court, the Colorado Court of Appeals and now the Colorado Supreme Court, which ruled 6-0 that Dish had the right to fire him.