D.C. Sees Most recent Test Case for Workers Looking for “Reasonable Accommodation” for Off-Duty Health-related 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 Functions, who claims that she was denied affordable accommodation and placed on an indefinite leave of absence just after disclosing that she is a healthcare marijuana card-holder below the District’s healthcare 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 healthcare 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 just after she disclosed that she possessed a healthcare 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 healthcare 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 giving employment protections to D.C. government personnel who are lawfully enrolled in a healthcare 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 folks participating in a healthcare marijuana plan, unless they had been functioning in a “safety sensitive position.”  Barber has argued that the D.C. Public Functions 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.

In contrast to other personnel 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 newest in a current trend of personnel in search of to make use of state or regional anti-discrimination laws as a indicates of requiring their employers to give “reasonable accommodation” of their off-duty healthcare marijuana use.

As quite a few of our Blunt Truth readers could recall, a New Jersey Court of Appeals not too long ago revived a funeral director’s healthcare 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 although New Jersey’s Compassionate Use Health-related Marijuana Act does not call for accommodation of healthcare marijuana use, New Jersey’s Law Against Discrimination may well call for 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 healthcare 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 applying marijuana for healthcare 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 yet another cautionary tale for employers who keep blanket policies prohibiting any form of off-duty marijuana use or who otherwise implement “zero tolerance” drug testing policies.

For far more facts on this problem, employers could speak to this author or your favored Seyfarth Cannabis lawyer.

 

 

 

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