I.
Pertinent
Legislation
The District of Columbia has taken
the significant step of legalizing limited possession and cultivation of
marijuana outright. On November 1, 2014, D.C. voters approved Initiative 71, which arguably became law on
February 26, 2015. However, the United
States Congress included a provision in the last spending bill prohibiting D.C.
from spending funds to “enact” the law.
Further complicating matters, D.C. has taken the position that the law
was actually “enacted” when Initiative 71 passed, and no further money needs to
be spent for the decriminalization to take effect. While there remains some controversy over
whether Initiative 71 can be “enacted” by the D.C. Council, Mayor Muriel Bowser
has strongly indicated that she will enforce the will of the voters. See Mike DeBonis, Aaron C. Davis,
“Bowser: Legal Pot Possession to Take Effect at Midnight in the District”,
Washington Post (Feb. 25, 2015) (available here). The
District of Columbia also permits physicians to prescribe medical marijuana for
any debilitating condition which they think would respond favorably to
it. Dept. of Health Notice of Proposed Rulemaking Vol. 60 No. 14
(March 29, 2013) (available here).
II.
So Is Marijuana
Legal?
The possession, cultivation, and use
of small amounts of marijuana is legal under District of Columbia law. More particularly, the following activities
are legal in the District of Columbia for adults over the age of 21:
·
Possessing two ounces or less of marijuana;
·
Giving one ounce or less of marijuana to another person over the
age of 21 as long as there is no exchange of goods or services;
·
Growing up to six marijuana plants in their home, no more than
three of which may be mature;
·
Possessing marijuana paraphernalia (e.g., “bongs”); and
·
Using marijuana on private property.
The District of Columbia has interpreted these laws
strictly – for example, plants must be grown “inside” the home and may not be
grown in an outdoor garden or on the roof.
Furthermore, the sale of any amount of marijuana by a private resident
remains illegal. Only licensed medical
marijuana distributors may sell marijuana legally in the District of
Columbia. Finally, marijuana may not be
used “[a]ny place to which the public is invited”. This means that it may not be used, for example,
in nightclubs, bars, or other businesses which are “open to the public.” It is not clear, at this point, whether
marijuana may be used in private, “members only” clubs.
However, it is important to remember
that marijuana remains illegal under federal law. The United States government has listed
marijuana on “Schedule I” of the Controlled Substances Act, 21 U.S.C. § 801 et seq.
Drugs listed on Schedule I are those which are considered to have “a
high potential for abuse,” “no currently accepted medical use,” and “lack
accepted safety.” Other Schedule I
substances include Opioids and Opium derivatives, such as Heroin, as well as
other drugs with severe hallucinogenic, stimulant, or depressant
properties. Cannabimimetic agents, such
as marijuana, are a separate category of drugs and are listed separately on
Schedule I.
One consequence of the fact that
marijuana remains illegal on the federal level is that it falls within the
scope of the Drug Free Workplace Act, 41 U.S.C. § 81. The Drug Free Workplace Act applies to
employers who: 1) have contracts valued at $150,000.00 or more with the federal
government; or 2) receive any amount of grant money. Covered employers are required to publish
policies which prohibit the use of illegal drugs, discipline those who violate
its policy, and report drug-related crimes in the workplace. Sanctions for non-compliance include the
termination of federal contracts or grant moneys, giving employers a strong
incentive to avoid any appearance of tolerating drug use.
III.
Potential Causes of Action
There are two primary claims which
may arise when an individual is terminated for the use of marijuana in the
District of Columbia. Recreational users
may have a claim for wrongful termination in violation of public policy under Adams v. George W. Cochran & Co.,
597 A.2d 28 (D.C. 1991) and Carl v.
Children’s Hospital, 702 A.2d 159 (D.C. 1997) (en banc). Adams and Carl arguably stand for the proposition that employers may not
terminate employees for reasons which violate public policy, including
exercising a statutory right. See Carl, 702 A.2d at 160. While citizens in D.C. now have a
circumscribed “right” to make recreational use of marijuana by virtue of the
fact that it is no longer illegal to do so, it is not clear that this “right”
can support a cause of action for wrongful termination. D.C. courts, like other courts, have narrowly
interpreted the tort of wrongful termination, and may not be willing to extend
it to cover the use of marijuana, as will be discussed below.
Medical marijuana users, meanwhile,
may have a claim under the D.C. Human Rights Act, which prohibits
discrimination against, among other protected categories, individuals with
disabilities. See D.C. Code § 2-1401.11(a).
This obligation extends to reasonably accommodating the disabilities of
employees. See Grant v. May Dep’t Stores Co., 786 A.2d 580, 583 (D.C.
2001). Many medical conditions treatable
with marijuana, such as glaucoma and epilepsy, qualify as “disabilities” under
the D.C. Human Rights Act. The
determinative issue in such cases is likely to be whether marijuana use is a
“reasonable” accommodation to an individual’s disability.
The District of Columbia has not yet
addressed this, and many other, issues surrounding the implications of its
medical marijuana laws. That said, an
employer faced with the loss of federal grants or contracts for permitting the
use of medical marijuana could likely argue that the requested accommodation
constituted an “undue burden”. This is
especially true if other medications are capable of treating the individual’s
condition. In the absence of such
contracts or grants, and assuming that an employee was not “under the
influence” at work, it would undoubtedly be argued that a medical marijuana
employee discharged for use of medical marijuana can maintain a claim for
failure to accommodate a disability in the event that they were terminated or
disciplined for off-duty marijuana use.
D.C. courts have not yet had the
opportunity to pass on whether such claims are permissible. However, most courts to address the issue
have concluded that, absent a statutory command to the contrary, employers
remain free to set their own drug policies and to discipline or terminate
employees who violate those policies. See, Coats v. Dish Network, 2013 COA 62 (Colo. Ct.
App. 2013), cert. granted
(Court held that medical marijuana is not a “lawful activity” under CO
statute because activity must be legal under both state and federal
law); Casias v. Wal-Mart, Inc.
695 F. 3d 248 (2012) (Court held that the Michigan Medical Marijuana Act does
not regulate private employment); Roe
v.Teletech Customer Care Management LLC, 171 Wash 2d 736(Wash. Sup.
Ct. 2011) (Court held that Washington’s Medical Use of Marijuana Act did
not regulate private employer’s conduct and employee who used medical
marijuana had no claim for wrongful discharge); Beinor v. Industrial Claim Appeals Office, 262 P.3d 970
(Colo. Ct. App. 2011), (Court found that Colorado’s medical marijuana
amendment provided an affirmative defense to criminal prosecution but did
not preclude denial from unemployment benefits after plaintiff was
terminated for violating employer’s zero tolerance drug policy); Emerald Steel Fabricators, Inc. v. Bureau of
Labor and Industries, 224 P.3d 518 (Ore. 2010) (Court found that
under Oregon's employment discrimination laws, employer was not required
to accommodate employee's use of medical marijuana); Ross v. RagingWire Telecommunications, Inc., 174 P.3d (Cal. 2008)(Court
held that state law cannot completely legalize marijuana for medical use
because it is illegal under federal law); but
see Arizona Revised Statutes 36-2801, 2813 (2104) (“An employer may not
discriminate against a person in hiring, termination or imposing any term
or condition of employment….for a registered qualifying 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.”).
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