Case law provides some employer support
Although there are many unanswered questions about the civil protections afforded hospital employees who use marijuana, there is enough case law to suggest that the legal system will stand behind hospitals that do not want their employees using the drug, says Cheryl D. Orr, JD, a partner with the law firm of Drinker Biddle & Reath in San Francisco. She provides this summary of recent statutes and case law:
- Medical marijuana patients' civil protections are not clearly defined in the statutes of most of the states that have enacted a medical marijuana law, Orr says. Supreme courts in California, Oregon, Washington, and Montana have all upheld employer decisions to discharge employees that were medical marijuana patients, she notes. The courts have held that the medical marijuana statutes in their state only protect patients from criminal sanctions and do not create any civil remedies or protections, Orr explains.
- A plaintiff in Colorado recently argued that an employer's decision to discharge a medical marijuana user who fails a drug test violated the state's "lawful activities" statute. Colorado, like many states, prohibits employers from taking action against an employee for engaging in lawful activities or using lawful products outside of the workplace. The Court of Appeals of Colorado held that the state's "lawful activities" statute did not bar the employer from discharging an employee who tested positive for marijuana after a random drug test and who was also a licensed medicinal marijuana patient.
- In Connecticut, Maine, and Rhode Island, medical marijuana patients are given protected status and employers are prohibited from discriminating against an employee merely due to their status as a medical marijuana patient. Illinois is considering a bill with similar protections.