Legal Medical Marijuana Use No Defense for Failed Drug Test, Federal Court Finds

Author: David B. Weisenfeld, XpertHR Legal Editor

December 11, 2015

A federal district court in the state of Washington has ruled that employers do not have to accommodate the use of medical marijuana if they have a drug-free workplace, even if the marijuana is being used off-site to treat an employee's disability. The ruling is notable because Washington has legalized marijuana not only for medicinal use but for recreational use as well.

In Swaw v. Safeway, Inc., an employee tested positive for marijuana following a workplace injury and was promptly terminated even though he had a valid medical marijuana prescription. The federal court in Seattle held that Safeway was under no legal obligation to make an exception to its drug-free policy, regardless of the employee's prescription.

The court rejected the employee's argument that he was disparately disciplined as compared to other employees who were intoxicated with alcohol. The court noted that, despite Washington law, marijuana is a Schedule 1 controlled substance and remains illegal under federal law whereas alcohol is not. Consequently, the employer did not have to treat these incidents in the same manner.

This ruling is consistent with most other courts that have addressed similar cases. In June, the Colorado Supreme Court held unanimously that a medical marijuana user who was fired after failing a drug test could not get his job back, even though both recreational and medical marijuana use are legal in the state. That court similarly pointed to federal law and the employer's drug-free workplace policy.

Speaking to XpertHR following that ruling, Holland & Hart employment attorney Emily Hobbs-Wright said, it would have been "incredibly difficult" for employers had the decision gone the other way, because they would not have been able to discipline employees without showing actual impairment on the job. Although there was no evidence the employee in this case was impaired, Hobbs-Wright said "Zero tolerance enables ease of administration for employers."