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Montana Worker’s Wrongful Discharge Claim Goes Up In Smoke

In 2010, an employee for Charter Communications, LLC was approved for a medical marijuana card (under Montana state law) to treat low back and stomach pain.  He could use the medical marijuana when he was not working, operating heavy equipment, or driving.  In January 2016, the employee hit a pole while working and driving a Charter-owned vehicle.  He tested positive for THC following two post-accident urinalysis tests.  Charter terminated the employee on February 9, 2016.

The former employee filed suit alleging wrongful discharge, retaliatory discharge, and discrimination under the Montana Human Rights Act.  Charter moved to dismiss each of the plaintiff’s claims.  Regarding the wrongful discharge claim, Charter argued that the Montana Medical Marijuana Act (MMMA) does not bar the termination.  Carlson v. Charter Communications, LLC, 2017 U.S. Dist. LEXIS 128019 (D. Mont. Aug. 11, 2017).

In partially dismissing the plaintiff’s claims, the district court noted the conflict between the Federal Drug-Free Workplace Act (DFWA) and Montana law.  The federal law requires covered employers to comply with seven prescribed items.  The DFWA defines “drug-free workplace” as one where employees “are prohibited from engaging in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance . . . .”  Montana’s medical marijuana law permits registered cardholders to possess up to one ounce of usable marijuana.  Hence the conflict in laws — the DFWA prohibits marijuana possession while the state law permits it, up to one ounce.

Based on the DFWA’s dictates, the court dismissed the employee’s wrongful discharge and discrimination claims, because the MMMA explicitly does not require employers “to accommodate the use of marijuana by a registered cardholder” and does not permit wrongful discharge or discrimination claims based on a termination for marijuana use.

The employee appealed and the Ninth Circuit swiftly affirmed, because, as stated, Montana’s medical marijuana law does not allow employees to sue for discrimination or prohibit employers from firing workers for marijuana use.  Carlson v. Charter Communications, LLC, No. 17-35917 (9th Cir. Nov. 19, 2018) (Unpublished).

While this case addresses Montana law, it provides a good opportunity to remind Maryland employers that Maryland’s medical marijuana law does not explicitly prohibit employment actions based on lawful medical marijuana use.  That said, the Maryland statute does have language that might implicate an employee’s right to off-duty medical marijuana use.  Maryland’s law states that a qualifying patient in possession of a 30-day supply of medical marijuana “may not be subject to arrest, prosecution, or any civil or administrative penalty, including a civil penalty or disciplinary action by a professional licensing board, or be denied any right or privilege, for the medical use of cannabis.”  Md. Code Ann., Health-Gen. § 13-3313(a) (emphasis added).  No Maryland appellate court has interpreted the language “any right or privilege.”  The Maryland Medical Cannabis Commission, however, states on its website that employers in Maryland may take action against their employees for using marijuana for any reason.  See http://mmcc.maryland.gov/Pages/patients_faq.aspx (“Maryland law does not prevent an employer from testing for use of cannabis (for any reason) or taking action against an employee who tests positive for use of cannabis (for any reason).”).

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