Wednesday, April 15, 2015

Marijuana: District of Columbia Law & Causes of Action



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.  SeeCoats 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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