The American Civil Liberties Union (ACLU) filed suit final week in the D.C. Superior Court on behalf of Doretha Barber, a sanitation worker with the D.C. Division of Public Functions, who claims that she was denied affordable accommodation and placed on an indefinite leave of absence just after disclosing that she is a health-related marijuana card-holder below the District’s health-related marijuana plan. Especially, Ms. Barber alleges that she suffers from degenerative disc illness which causes her debilitating back discomfort and for which she was lately prescribed health-related marijuana for off-duty use only. When Ms. Barber requested a short-term transfer to a clerical position through the fall leaf raking season as an accommodation of her disability, she was purportedly denied the transfer, and just after she disclosed that she possessed a health-related 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 till she effectively passed a drug test (which she would inevitably fail due to her health-related marijuana use) due to the fact she was operating in a “safety sensitive position.”
The District’s actions seem to be in response to a new D.C. law giving employment protections to D.C. government staff who are lawfully enrolled in a health-related marijuana plan. This new law, which is pending Congressional approval but is anticipated to take impact October 31, 2019, would prohibit the D.C. government from taking any form of adverse employment action against men and women participating in a health-related marijuana plan, unless they had been operating in a “safety sensitive position.” Barber has argued that the D.C. Public Functions lately characterized all sanitation workers as “safety sensitive” positions, notwithstanding the truth that she does not operate a automobile or operate any heavy machinery.
As opposed to other staff who have unsuccessfully attempted to seek federal employment protection below the Americas with Disabilities Act (ADA) due to the truth that marijuana remains an “illegal drug” below the Controlled Substance Act (CSA) and the ADA, Ms. Barbar becomes the most current in a current trend of staff in search of to make use of state or neighborhood anti-discrimination laws as a suggests of requiring their employers to offer “reasonable accommodation” of their off-duty health-related marijuana use.
As a lot of of our Blunt Truth readers may possibly recall, a New Jersey Court of Appeals lately revived a funeral director’s health-related 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 when New Jersey’s Compassionate Use Healthcare Marijuana Act does not demand accommodation of health-related marijuana use, New Jersey’s Law Against Discrimination may demand an employer to offer affordable accommodation and overturned the reduced court’s dismissal.
The ACLU seemingly seeks to extend this case law to D.C. with this new lawsuit in an try to seek new employment protections for health-related marijuana customers – specifically for these in the private sector in D.C. exactly where employers are at the moment not prohibited from taking employment action against these employing marijuana for health-related causes constant with D.C. law. When it remains to be noticed how this new lawsuit will be resolved in the courts, it serves as however yet another cautionary tale for employers who sustain blanket policies prohibiting any form of off-duty marijuana use or who otherwise implement “zero tolerance” drug testing policies.
For additional information and facts on this challenge, employers may possibly speak to this author or your favored Seyfarth Cannabis lawyer.