Washington Supreme Court Preempts Employee’s Use of Medical Marijuana

By Karin Jones

Introduction. In a hotly-contested case garnering statewide attention, the Washington Supreme Court confirmed that Washington’s Medical Use of Marijuana Act did not obligate an employer to accommodate an employee’s use of medical marijuana, even when the employee in a non-safety-sensitive position used medical marijuana exclusively off-site [Roe v. TeleTech Customer Care Management (Colorado) LLC, 171 Wn.2d 736, 257 P.3d 586 (2011) [enhanced version available to lexis.com subscribers]].

Medical Use of Marijuana Act. In 1998, Washington voters passed Initiative 692, which became the Medical Use of Marijuana Act (“MUMA”) [RCW Ch. 69.51A]. The primary purpose of MUMA is to provide an affirmative defense against state criminal prosecution for individuals who use marijuana for medicinal purposes and medical providers who recommend such use [see RCW 69.51A.040]. The version of MUMA in effect at all times relevant to the Roe v. TeleTech case mentioned employment in the following sole provision: “Nothing in this chapter requires any accommodation of any medical marijuana use in any place of employment” [RCW 69.51A.060(4) (1999)].

Factual Background in Roe v. TeleTechThe plaintiff in Roe v. TeleTech used marijuana more than four times a day to treat severe migraine headaches. In June 2006, Roe sought and received a physician’s authorization for her daily cannabis use. Four months later, TeleTech Customer Care Management (Colorado) LLC (“TeleTech”) conditionally offered Roe a position as a customer care service representative at its Bremerton, Washington facility, where TeleTech provides telemarketing and telesales services. Roe began training in her new position. However, TeleTech’s job offer was contingent on Roe passing a drug screening. Significantly, TeleTech had a zero-tolerance drug policy, rendering any individual who failed the initial drug screening ineligible for continued employment.

At the time she took the drug test, Roe informed TeleTech of her medical marijuana use pursuant to a physician’s authorization. Roe indicated that her use of marijuana occurred exclusively in her home, although she acknowledged that the drug remained in her system. Not surprisingly, Roe’s drug screening results were positive for THC, a psychoactive component of marijuana. In accordance with its zero-tolerance drug policy, Teletech promptly terminated Roe’s employment.

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