The American Civil Liberties Union (ACLU) filed suit last week in the D.C. Superior Court on behalf of Doretha Barber, a sanitation worker with the D.C. Department of Public Works, who claims that she was denied reasonable accommodation and placed on an indefinite leave of absence after disclosing that she is a medical marijuana card-holder under the District’s medical marijuana program. Specifically, Ms. Barber alleges that she suffers from degenerative disc disease which causes her debilitating back pain and for which she was recently prescribed medical marijuana for off-duty use only. When Ms. Barber requested a temporary transfer to a clerical position during the fall leaf raking season as an accommodation of her disability, she was purportedly denied the transfer, and after she disclosed that she possessed a medical marijuana card, she was allegedly placed on an unpaid leave of absence and told that she could not resume her duties as a sanitation worker until she successfully passed a drug test (which she would inevitably fail due to her medical marijuana use) because she was working in a “safety sensitive position.”
The District’s actions appear to be in response to a new D.C. law providing employment protections to D.C. government employees who are lawfully enrolled in a medical marijuana program. This new law, which is pending Congressional approval but is expected to take effect October 31, 2019, would prohibit the D.C. government from taking any type of adverse employment action against individuals participating in a medical marijuana program, unless they were working in a “safety sensitive position.” Barber has argued that the D.C. Public Works recently characterized all sanitation workers as “safety sensitive” positions, notwithstanding the fact that she does not operate a vehicle or operate any heavy machinery.
Unlike other employees who have unsuccessfully attempted to seek federal employment protection under the Americas with Disabilities Act (ADA) due to the fact that marijuana remains an “illegal drug” under the Controlled Substance Act (CSA) and the ADA, Ms. Barbar becomes the latest in a recent trend of employees seeking to utilize state or local anti-discrimination laws as a means of requiring their employers to provide “reasonable accommodation” of their off-duty medical marijuana use.
As many of our Blunt Truth readers may recall, a New Jersey Court of Appeals recently revived a funeral director’s medical marijuana disability discrimination suit in Wild v. Carriage Funeral Holdings. In that case, which is set to be heard by the New Jersey Supreme Court this fall, the court held that while New Jersey’s Compassionate Use Medical Marijuana Act does not require accommodation of medical marijuana use, New Jersey’s Law Against Discrimination might require an employer to provide reasonable accommodation and overturned the lower court’s dismissal.
The ACLU seemingly seeks to extend this case law to D.C. with this new lawsuit in an attempt to seek new employment protections for medical marijuana users – particularly for those in the private sector in D.C. where employers are currently not prohibited from taking employment action against those using marijuana for medical reasons consistent with D.C. law. While it remains to be seen how this new lawsuit will be resolved in the courts, it serves as yet another cautionary tale for employers who maintain blanket policies prohibiting any type of off-duty marijuana use or who otherwise implement “zero tolerance” drug testing policies.
For more information on this issue, employers may contact this author or your favorite Seyfarth Cannabis lawyer.