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Wednesday, November 5, 2014

Some Workplaces Going to Pot

By Tommy Eden

In Rhode Island on November 12, 2014, the ACLU filed a state court Disability Discrimination and violation of the Hawkins and Slater Medical Marijuana Act lawsuit on behalf of Christine Callaghan, a University of Rhode Island graduate student intern applying to work for pay and class credit at Darlington Fabrics Corporation. Christine was also was a lawful cardholder in the Rhode Island medical marijuana program since 2013.

The lawsuit alleges that Christine used marijuana to treat her migraine headaches and disclosed to a member of Darlington’s human resources department that she was a medical marijuana cardholder during her final interview. She was later called on a company speakerphone and told she would not be employed because she was a medical marijuana patient, according to the lawsuit. The Rhode Island Act grants employee discrimination protection to qualified card holders. The Act is found at G.L. 1956 Section 21-28-28.6-1. The Complaint completely ignores the issue that marijuana is illegal under federal law. The Case is Callaghan v. Darlington Fabrics Corp. in the Providence Superior Court.

As a side note, the New York Times ran a story on November 6, 2014, that George Soros’ Open Society Foundation gave a 50 million dollar gift to the ACLU to mount an eight-year political campaign across the country to make a change in criminal justice policies, a key issue in local, state and national elections.  Darlington is the first case in the country that the ACLU has filed such a claim to take up the cause of a medical marijuana cardholder. There are at least seven other states with exploit “status protection” to cardholders such as: Arizona, Connecticut, Maine, Nevada, Rhode Island, Delaware, Illinois, Minnesota, New York.

In the State of Michigan on October 23, the Michigan Court of Appeals issued a ground breaking consolidated decision in three unemployment compensation appeals that all concerned medical marijuana cardholders.

Jenine Kemp was employed by Hayes Green Memorial Hospital in Charlotte, MI, as a CT technician. The Hospital maintained a zero-tolerance drug policy and employees were pre-employment and reasonable suspicion drug tested. In May 2011, a patient complained that Kemp had inserted an IV line in the patient without using gloves, discussed the patient’s insurance coverage in a crowded area, and told the patient about her family’s drug use, including that she ate “special brownies,” according to court documents.
An investigation followed and Kemp was directed to take a drug test. Kemp wrote on the consent form that she used medical marijuana. During the investigative meeting Kemp showed no objective signs of intoxication but tested positive for marijuana in a confirmed test. Kemp was terminated by the hospital for failing the drug test.

Kemp later testified that she suffered from lupus, neuropathy, and chronic pain in her hand and she has first obtained a medical marijuana card in December 2010, which was valid at the time of her termination in May 2011. According to Kemp’s testimony, she was never under the influence of marijuana at work but used it between 6:00 p.m. and 7:00 p.m., and to her the effects were usually gone within two hours. She worked the Hospital’s 6:30 a.m. to 3:00 p.m. shift.

Kemp applied for unemployment benefits but was initially disqualified for testing positive for an illegal substance. However, the decision was overturned by a Michigan Administrative Law Judge (ALJ) when she produced her medical marijuana card. The ALJ explained that because marijuana was legally available to use for medical purposes, the issue was whether Kemp’s use of marijuana constituted misconduct or was illegal, and must include consideration of the Michigan Medical Marijuana Act (MMMA). Because Kemp used marijuana for medical purposes, the ALJ found that her use was lawful and did not bar her receipt of benefits.

The MMMA provides that qualifying patients “shall not” (1) be subject to arrest, prosecution, or “penalty in any manner” or (2) be denied any “right” or “privilege,” “including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau. . . .” On October 23, 2014, in a ground breaking decision, the Michigan Court of Appeals zeroed in on that language to find that the denial of the unemployment compensation benefits to Kemp, and two similarity situated Michigan employees, constituted an improper penalty for the medical use of marijuana under the MMMA. Most significant is the Appeals Courts acknowledgment that marijuana is an illegal drug under federal law but held that this was purely a state law issue. These combined appeal decision by the Michigan Court of Appeals is  Braska etal v. Department of Licensing & Regulatory, Unemployment Insurance Agency decided October 23, 2014.

Common Sense Counsel: so what is your employer survival plan as more states go to Pot? Try these 7 practical steps:
 1. Understand the laws on Medical Marijuana that are specific to states where employees report for duty;
2. Adopt a legally vetted pre-duty prescription medication and impairing effects substances safety policy that makes it all about safety;
3. Update employee job descriptions to cover critical safety sensitive issues;
4. Adopt an ADA complaint handbook policy on reasonable accommodations in those more difficult states that grant some level of employee status protections;
5. Let employees know your stance on Medical and Recreational Marijuana use;
6. Update your drug-free workplace policy and forms to stay in compliance and reduce the risk of claims and lawsuits; and
7. Stay tuned as this issue continues to create new employer challenges almost monthly.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter tommyeden3