Medical Marijuana Act Does Not Bar Firing Employee for Marijuana Use

By Joanne Deschenaux Apr 8, 2009
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The Montana Supreme Court ruled March 31 that the state's Medical Marijuana Act (MMA) does not protect an employee from being fired for using marijuana. The court ruled that the discharge did not violate the Montana Human Rights Act (MHRA) or the federal Americans with Disabilities Act (ADA) and that the employee had no right to sue directly under the MMA.

In accordance with its collective bargaining agreement, Columbia Falls Aluminum Company LLC (CFAC) instituted a drug and alcohol testing policy, providing that an employee would be subject to discipline, including termination, for testing positive for certain controlled substances, including marijuana. As a result of work injuries, Mike Johnson, a CFAC employee, began treating his pain with medical marijuana under the supervision of a Montana-licensed physician. Johnson used personal funds to purchase medical marijuana and limited his treatments to after work hours. Johnson received no adverse job performance evaluations during the year and a half that he treated his condition with medical marijuana.

On July 6, 2006, Johnson reported to CFAC his concern about a recent medication change, in accordance with the drug testing policy. Although Johnson did not disclose his use of medical marijuana at the time, a fitness for duty evaluation reported he tested positive for marijuana. CFAC suspended Johnson on July 28, 2006.

On Aug. 28, 2006, CFAC submitted a letter of agreement to Johnson outlining the conditions upon which he could return to work—in particular that he test nonpositive for marijuana. Johnson never signed the “last chance” agreement. CFAC terminated Johnson on Sept. 14, 2006.

Johnson filed a wrongful discharge suit and the trial court ruled against him, dismissing his claims before trial. The Supreme Court affirmed the lower court’s dismissal of the action. The court found that “The MMA is essentially a ‘decriminalization’ statute that protects qualifying patients, caregivers and physicians from criminal and civil penalties for using, assisting the use of, or recommending the use of medical marijuana.” However, the MMA specifically provides that it cannot be construed to require employers “to accommodate the medical use of marijuana in any workplace.” Therefore, the court held that there could be no violation of the MHRA or ADA.

Johnson's attorney had argued that to "accommodate" means the company would have to do something affirmative, such as provide a place for a worker to smoke marijuana during the day if his medical condition required it.

Montana’s MMA was enacted by voters in 2004. Twelve other states also have a medical marijuana law in place, according to a national advocacy group. Those states are Hawaii, Alaska, California, Oregon, Washington, New Mexico, Nevada, Colorado, Michigan, Rhode Island, Vermont and Maine.

Johnson v. Columbia Falls Aluminum, Montana, No. 2009 MT 108N (March 31, 2009.)

Joanne Deschenaux is SHRM’s senior legal editor.

Related Article:

Employers Should Exercise Caution in Dealing with Medical Marijuana Users, SHRM Online Legal Issues, June 30, 2008

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