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Originally published Sunday, February 27, 2011 at 10:02 PM

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Can legal use of medical marijuana get you fired? State Supreme Court to decide

Washington voters approved the use of medical marijuana, but state law is murky on whether workers can be fired for legally using pot.

Seattle Times staff reporter

Among the questions left unanswered by Washington's medical-marijuana law: Can legal use of medical marijuana get you fired?

Thirteen years after voters approved its use, that question is likely to be answered by the Washington Supreme Court, which heard a test case on the issue last month.

It involves a woman fired by a Bremerton call center in 2006 because she failed a pre-employment drug test but had a valid authorization from a doctor.

The woman, identified in court by the pseudonym Jane Roe, used marijuana at night to treat migraines. The call center, Teletech Customer Care, offered no evidence that the use impaired her ability to work.

Michael Subit, Jane Roe's Seattle attorney, argued before the state high court that such use is implicitly protected because voters legalized it. "It would flabbergast the average voter to think, 'I've been given this right but can fired for it anyway,' " he said.

Courts in other states, including Oregon and California, have ruled in favor of businesses in similar cases.

Washington business groups are watching the Jane Roe case closely, anxious that the court potentially could define medical-marijuana use as a disability and therefore protect patients from firing.

"There's only so often that we want Washington to be an outlier, to appear to be less competitive because we put obligation on employers that they wouldn't face elsewhere," said Timothy O'Connell, a Seattle employment lawyer speaking on behalf of the Association of Washington Business.

Citing a recent letter from Idaho's governor seeking to woo local businesses, O'Connell said, "Do we want the governor of Idaho to have another paragraph to send to employers here?"

"A little nervous"

The initiative passed by voters in 1998 included a sentence stating that it did not require "any accommodation of any medical use of marijuana in any place of employment."

The Legislature amended it in 2007 to say "any on-site medical use." But the law remained silent about use outside work, leading to uncertainty about the intent.

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The issue most commonly arises in pre-employment drug testing. Many employers also conduct drug tests for cause — such as obvious impairment — and after accidents or car crashes.

A 2006 survey by SHRM, a national association of human-resources managers, found that 84 percent of companies drug-test new employees; nearly 40 percent do random testing.

Locally, several big employers — including Microsoft and the University of Washington — don't routinely drug-test new hires unless the jobs are "security-sensitive" or involve driving. Other big employers, including Boeing, do screen. Federal contractors are required to ensure drug-free workplaces.

Rich Meneghello, a longtime employment lawyer in Portland, said companies with clear drug policies will prohibit use of marijuana because it is illegal but may exempt prescription drugs.

"Employers across the country have now made a distinction between prescription drugs and medical marijuana," he said. "Employers just get a little nervous about" marijuana because of concerns about liability and lost productivity.

Such a distinction leads medical-marijuana advocates to howl about a double standard.

But Washington's Department of Employment Security treats medical marijuana the same as a prescription drug. If an employee files for unemployment benefits based on being fired for a dirty drug test, and there is no evidence they were high at work, the state usually will approve the claim, said Matt Buelow, a policy manager for the agency.

"In this state," he said, "medical marijuana has been legalized through the voter process. Because it's legal in this state, as far as we're concerned, it's like a prescription. For someone to be denied benefits, there has to be willful misconduct."

Courts favor business

As the medical-marijuana movement has advanced throughout the country, employment protections haven't always followed. Rulings from the California Supreme Court in 2008 and Oregon Supreme Court in 2010 both upheld the right of employers to fire employees for use.

And a federal-district court in Michigan last month upheld Wal-Mart's firing of an employee — a legal user under Michigan's medical-marijuana law — when he failed a drug test administered after an on-the-job accident.

The trend is troubling, said Kris Hermes, a spokesman for Americans for Safe Access, a national medical-marijuana advocacy group. Several states that recently passed medical-marijuana laws, including Rhode Island and Arizona, have employment protections, but most of the 15 states allowing its use do not, he said.

"We hear reports all across the state of instances of employment discrimination, and the remedy is extremely limited," Hermes said.

A sweeping bill introduced this legislative session in Olympia included employment protection. But that provision was stripped out as the bill — which would legalize and regulate dispensaries and commercial grow operations — advanced through the state Senate.

The fact that the employment protections were included in the bill shows that the current law does not contain them, said James Shore, a Seattle attorney who argued for Teletech before the state Supreme Court last month.

"If one is seeking to create workplace rights, the Legislature should put it out front for the voters, so people know what it's about," he said. "The initiative passed by the voters was never intended to create workplace rights."

The Jane Roe case began in 2006, when the woman, then a married mother of two in her early 20s, began having severe migraines. In an interview, she said she tried medications that "made me whacked out of my mind."

Small doses

The woman, who declined to be identified for this story to protect her children and her future work prospects, said she never had used marijuana before she turned to it as medicine. After obtaining an authorization from a clinic specializing in medical marijuana, she began taking small doses — often with tinctures, a marijuana-infused alcohol — before sleep, and never in front of her children. The migraines, she said, "largely disappeared."

She already had worked for Teletech — a Colorado-based firm that handles customer service for Sprint from its Bremerton facility — once before, and applied again knowing she'd have to pass a drug test. She said she offered to show the company her doctor's note, but the offer was declined.

In court documents, the company said its contract with Sprint required drug testing and makes no exception for medical marijuana.

The woman was pulled out of her training class after a week and fired Oct. 18, 2006.

"Very humiliating"

"It was very humiliating for me," she said. "I'm not ... some dope-smoker pot lady. I'm a good mom."

She lost in trial court, and the Court of Appeals sided with Teletech, saying the state's medical-marijuana law only gives a defense against criminal charges. She now waits for the Supreme Court, which often takes months to decide complex cases.

Meanwhile, she earned a four-year degree in hospital administration and has worked at firms that don't do pre-employment screening. If necessary to land another job, she said she would stop using medical marijuana — and suffer the health consequences. But she said she shouldn't have to.

"People shouldn't have to choose between their health and their employment for such a valid reason as medical marijuana," she said.

Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com

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