Medical Marijuana Use: a New Cause of Action for Discrimination?

By: Maryam Nayibova

In a case of first impression, decided just last month, a District Court in New Mexico ruled that an employer does not have to accommodate an employee’s use of medical marijuana.[1]  In that case, an employee, Rojerio Garcia suffered from HIV/AIDS and was prescribed medical marijuana to ease his pain.[2]  Mr. Garcia applied for acceptance into the New Mexico Medical Cannabis Program, an agency of the New Mexico Department of Health, and was accepted and issued a Patient Identification Card.[3]  He subsequently applied for a job at the Tractor Supply Company, was hired and then had to undergo a drug test, where he tested positive for cannabis.[4]  At the interview, Mr. Garcia divulged his condition and his participation in the Medical Cannabis Program.[5]  Regardless of this, Mr. Garcia was discharged because of the result of the drug test, after which he filed a complained stating that he was unlawfully discriminated against by the company, when they failed to accommodate his use of medical marijuana.[6]

After exhausting his administrative remedies (where Labor Relations Division found no probable cause), Mr. Garcia filed suit.[7]  The Court found that the New Mexico’s Compassionate Use Act, combined with the New Mexico Human Rights Act does not provide a cause of action for Mr. Garcia, as medical marijuana is not an accommodation that must be provided for by the employer.”[8]  New Mexico is not the only state to reach such conclusion.[9]

It is clear that New Mexico will not be among those states that do require employers to accommodate for use of medial marijuana just yet.[10]  For example, Rhode Island has a law that prohibits discrimination in employment, housing, or education because of a person’s use of medical marijuana.[11]  Since it was enacted, not a single lawsuit was brought challenging either the statute or asserting that the employer discriminated by not accommodating, which means that accommodation by employers is not impossible.[12]  To this date, twenty-three states have passed laws allowing the use of medical marijuana.[13]  This has created confusion for employees and employers alike.[14] Employers are still looking for concrete guidance regarding employees who are medical marijuana users.[15]  It’s not exactly clear where this issue is heading, especially where Federal and State laws differ and nine of the medical marijuana statutes explicitly state that an employer is not required to accommodate use of marijuana, and none of the statutes even address accommodation.[16]  To better state their case, patients/employees with permission to use medical marijuana, can continue bringing suits for disability discrimination under the ADA, and hopefully with the ongoing legislation legalizing marijuana in many states, courts will feel compelled to rule differently when it comes to medical marijuana in the workplace.[17]

[1] Rojerio Garcia v. Tractor Supply Co., CV 15-00735 WJ/WPL, 2016 WL 93717 (D.N.M. Jan. 7, 2016).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] See Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200, 206-07 (Cal. 2008) (stating that employers do not have to accommodate such use, even if the employee’s job performance was in no way impeded by the employee’s use of medical marijuana); see also Casias v. Wal-Mart Stores, Inc., 764 F. Supp. 2d 914 (W.D. Mich. 2011).

[10] Fred Hosier, Worker has medical marijuana license: Can company fire him? (Jan. 2016), http://www.safetynewsalert.com/worker-has-medical-marijuana-license-can-company-fire-him/; see also Hunton & Williams LLP (Jan. 2015), http://www.huntonlaborblog.com/2015/01/articles/criminal-background-checks/antidiscrimination-provisions-in-state-medical-marijuana-laws-raise-additional-considerations-for-workplace-drug-testing/.

[11] Elizabeth Hurwitz, Out of the Shadows, into the Light: Preventing Workplace Discrimination Against Medical Marijuana Users, 46 U.S.F. L. Rev. 249, 274 (2011); see also 21 R.I. Gen. Laws Ann. § 21-28.6-4 (West).

[12] Elizabeth Hurwitz, Out of the Shadows, into the Light: Preventing Workplace Discrimination Against Medical Marijuana Users, 46 U.S.F. L. Rev. 249, 274 (2011).

[13] Robert L. DuPont, Workplace Drug Testing in the Era of Legal Marijuana, INSt. FOR BEHAVIOR AND HEALTH (March 2015), http://www.drugfreebusiness.org/Media/documents/IBH_workplacetesting.pdf

[14] Id.

[15] Stacy A. Hickox, Clearing the Smoke on Medical Marijuana Users in the Workplace, 29 Quinnipiac L. Rev. 1001 (2011)

[16] Id.

[17] Elizabeth Rodd, Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination, 55 B.C. L. Rev. 1759, 1772-73 (2014).

 

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