D.C. Sees Most up-to-date Test Case for Personnel Looking for “Reasonable Accommodation” for Off-Duty Healthcare Marijuana Use

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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 Performs, who claims that she was denied affordable accommodation and placed on an indefinite leave of absence soon after disclosing that she is a health-related marijuana card-holder below the District’s health-related marijuana plan.  Particularly, Ms. Barber alleges that she suffers from degenerative disc illness which causes her debilitating back discomfort and for which she was not too long ago prescribed health-related marijuana for off-duty use only.  When Ms. Barber requested a short-term transfer to a clerical position for the duration of the fall leaf raking season as an accommodation of her disability, she was purportedly denied the transfer, and soon 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) simply because she was functioning in a “safety sensitive position.”

The District’s actions seem to be in response to a new D.C. law supplying 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 kind of adverse employment action against people participating in a health-related marijuana plan, unless they have been functioning in a “safety sensitive position.”  Barber has argued that the D.C. Public Performs not too long ago 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 up-to-date in a current trend of staff looking for to make use of state or nearby anti-discrimination laws as a implies of requiring their employers to give “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 not too long ago 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 though New Jersey’s Compassionate Use Healthcare Marijuana Act does not need accommodation of health-related marijuana use, New Jersey’s Law Against Discrimination could possibly need an employer to give 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 – especially 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 motives constant with D.C. law.  When it remains to be observed how this new lawsuit will be resolved in the courts, it serves as however yet another cautionary tale for employers who preserve blanket policies prohibiting any kind of off-duty marijuana use or who otherwise implement “zero tolerance” drug testing policies.

For a lot more information and facts on this concern, employers may possibly get in touch with this author or your favourite Seyfarth Cannabis lawyer.

 

 

 

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