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 Operates, 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. 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 in the course 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) for the reason that she was functioning in a “safety sensitive position.”
The District’s actions seem to be in response to a new D.C. law delivering 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 men and women participating in a health-related marijuana plan, unless they had been functioning in a “safety sensitive position.” Barber has argued that the D.C. Public Operates lately characterized all sanitation workers as “safety sensitive” positions, notwithstanding the reality 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 reality that marijuana remains an “illegal drug” below the Controlled Substance Act (CSA) and the ADA, Ms. Barbar becomes the newest in a current trend of staff looking for to use state or neighborhood anti-discrimination laws as a indicates 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 well 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 Health-related Marijuana Act does not call for accommodation of health-related marijuana use, New Jersey’s Law Against Discrimination may well call for 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 – especially for these in the private sector in D.C. exactly where employers are presently not prohibited from taking employment action against these applying marijuana for health-related factors constant with D.C. law. Though it remains to be noticed how this new lawsuit will be resolved in the courts, it serves as however a different cautionary tale for employers who sustain blanket policies prohibiting any kind of off-duty marijuana use or who otherwise implement “zero tolerance” drug testing policies.
For additional facts on this concern, employers may well speak to this author or your preferred Seyfarth Cannabis lawyer.
D.C. Sees Most current Test Case for Workers Looking for “Reasonable Accommodation” for Off-Duty Health-related Marijuana Use