Tuesday, July 22, 2014
"Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination"
The title of this post is the title of this notable new student Note by Elizabeth Rodd now available via SSRN. Here is the abstract:
Currently, twenty-one states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, medical marijuana use — either recreational or medicinal — remains illegal under the Federal Controlled Substances Act. Given the inconsistency between state and federal law concerning the legality of medicinal marijuana, there is significant uncertainty regarding the rights of employees to engage in state-sanctioned, off-duty use of medical marijuana.
To date, courts have refused to grant protections to employees’ who have suffered adverse employment action for their off-duty, state-sanctioned medical marijuana use. Although the existing case law appears employer-friendly, employee-friendly dissenting opinions and states that have adopted explicit statutory discrimination protections for medical marijuana users signify that this current trend could easily change. This Note argues that courts should allow employees’ claims for disability discrimination to proceed under state law, and state legislatures should amend their current medical marijuana statutes to afford employment discrimination protection to qualified patients. In doing so, states will be able to protect disabled employees from discrimination due to their use of a state sanctioned therapeutic remedy.