4/20 EDITITON: CAN YOU BE FIRED FOR USING MEDICAL MARIJUANA PRESCRIBED BY A DOCTOR?

With today being April 20th (4/20), I thought today would be just as good as any to write about the case that is going up to the Washington Supreme Court involving medical marijuana. The case is Roe v. Teletech Customer Care Management, LLC. What happened was Roe was hired by Teletech to work as a customer service consultant for the company. Roe had been prescribed medical marijuana by her physician in Bellevue, Washington to treat her migraine headaches and had documents authorizing her to use marijuana under Washington's medical Use of Marijuana Act (MUMA).

On October 3, 2006, TeleTech hired Roe. When Roe was told that she would have to submit to drug testing, Roe told TeleTech that she used medical marijuana at home and that she was allowed to do so by law. On October 5, 2006, Roe took a drug test and on October 10, 2006, she began working for TeleTech. Roe's drug test results also came back on October 10, 2006 and indicated that Roe tested positive for marijuana. On October 18, 2006, TeleTech fired Roe because of the positive drug test.

Roe sued Teletech for wrongful termination based on two different legal theories. The first theory was that under MUMA, it is implied that that employees who are authorized to use medical marijuana can sue employers who fire them for their use of medical marijuana. The trial court rejected this argument, finding no such legislative intent and that the average lay person who voted for the MUMA initiative would not have read an implied cause of action against employers into the plain language of the initiative.

The second legal theory was that Roe's termination was wrongful because it was against public policy to fire a person for legally using prescribed medication. The lower court rejected this argument as well and granted a motion for summary judgment in favor of Teletech. Roe appealed the trial court's decision to Division 2 of the Washington State Court of Appeals. The Court of appeals affirmed the trial court's decision.

In the Court of Appeals' decision, the court pointed out that to succeed on a wrongful termination claim, Roe would have to show (1) the existence of a clear public policy; (2) discouraging Roe's use of medical marijuana would jeopardize the public policy; (3) the public policy linked conduct was the reason Roe was fired; and (4) TeleTech cannot offer an overriding justification for Roe being fired.

The Court of Appeals found that Roe had not established that a clear public policy existed. The Court of Appeals stated that MUMA only protects patients and physicians from criminal prosecution, it does not provide them with a basis to bring a lawsuit against employers for wrongful termination. The ACLU of Washington had filed an amicus memorandum to the Washington Supreme Court, which has decided to review the case.

I predict that the Washington Supreme Court may very well reverse the lower court's decision. Although, it may be a long shot in showing that there is an implied cause of action in MUMA to sue employers, I do think that it is clearly against public policy to terminate employees for legally taking prescribed medication at home when it does not pose a threat to safety of other sin the workplace or negatively affect job performance.