Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination

INTRODUCTIONGary Ross suffers from back pain as a result of injuries sustained in 1983 during his service with the United StatesAir Force.1 When conventional medications failed to provide relief, Ross's doctor recommended medical marijuana for his pain.2 After beginning medical marijuana treatment in 1999, Ross's job performance as a telecommunications system administrator never suffered due to his medical marijuana use.3 In September 2001, when Ross accepted employment with a new telecommunications company, he was subject to a preemployment drug test and tested positive for tetrahydrocannabinol, the active chemical in marijuana.4 Although Ross's medical use of marijuana was state sanctioned and conducted while off duty, the employer discharged Ross without offering any accommodation for Ross's back condition.5 Ross sued the employer for disability discrimination, but the Supreme Court of California held that Ross did not have a cause of action under state discrimination laws because the use of marijuana remains illegal at the federal level.6Doctors can legally recommend medical marijuana to patients in states where medical marijuana is decriminalized.7An increasing number of states are following California's lead and are enacting legislation to legalize medical marijuana.8 As a result of these recent legislative changes, over one million people currently use medical marijuana, and this number continues to rise.9 Furthermore, there is increasing public support for legalizing medical marijuana.10 Despite this evolving legislative and social atmosphere, marijuana use-either for recreational or medical purposes-remains illegal under the federal Controlled Substances Act ("CSA").11The facts surrounding Mr. Ross's case highlight the inconsistency between state and federal marijuana laws that has led to uncertainty regarding the rights of employees to engage in state-sanctioned, off-duty use of medical marijuana.12 Although states have passed medical marijuana laws to protect the health, safety, and welfare of their citizens,13 courts addressing the issue have thus far unanimously used federal law to deny employees any legal mechanism to extend this protection to medical marijuana use in the employment context.14 To date, the U.S. Court ofAppeals for the Sixth Circuit, the Supreme Court of California, the Montana Supreme Court, the Washington Supreme Court, and the Colorado Court ofAppeals have all dismissed employees'claims for employment discrimination and wrongful termination where the employee was terminated for medical marijuana use.15 As a result, medical marijuana patients are left with an impossible choice of either being able to pursue a career or suffer from chronic, debilitating pain.16This Note argues that, in states where medical marijuana use is legal, employees should be granted protections from employment discrimination under state law.17 Part I of this Note outlines the federal and state laws surrounding marijuana use and employment discrimination.18 Part II examines the arguments made by employees in cases involving medical marijuana employment discrimination claims.19 Further, Part II analyzes why employees'claims have consistently failed, and why dissenting opinions have found merits to these claims 20 Finally, Part III of this Note argues that employees who are terminated for their use of state-sanctioned medical marijuana should be afforded discrimination protection under state law.21 More specifically, Part III argues that courts should allow medical marijuana users to state claims for disability discrimination under state law and that state legislatures should amend their medical marijuana statutes to explicitly provide a cause of action for medical marijuana patients who are discriminated against in the employment context.22I. THE HAZY LANDSCAPE OF MEDICAL MARIJUANA IN THE EMPLOYMENT DISCRIMINATION CONTEXTMarijuana legislation and employment discrimination legislation exist at both the federal and state level. …