Las Vegas, NV
Fifty-seven-year-old Charlie Davis, a medical marijuana patient in New Jersey, was recently suspended from his job at New Jersey Transit and ordered into drug rehabilitation for using medical cannabis while off-duty. Now Davis is suing, claiming that his former employer violated state discrimination laws that protect employees with disabilities.
"I'm not a junkie," Davis told the Record, a northern New Jersey newspaper. "I told them I was taking prescribed medical marijuana. I was not hiding anything from them."
Davis suffers from end-stage renal failure and associated nerve damage in his legs. The nerve damage causes him intense pain that renders him unable to get regular sleep, and occasionally leaves him unable to walk. Seeking some relief from the pain and under his doctor's recommendation, Davis began using medical marijuana last October. Davis' attorney, Sarah Fern Meil, told The Huffington Post that it was an effective treatment for Davis' pain, one that allowed him to sleep and lead a more productive life.
But in December, Davis, who had been employed by the state's public transportation agency for five years, was "bumped" from his procurement clerk position by a more senior staff member, according to the lawsuit filed last month.
Employees at NJ Transit have the right to take any job for which they are qualified and hold the highest seniority. When Davis was bumped, he went to the Transit assignment office to look for another position. He bid on a newly available job as a "block operator" -- a field position he'd previously held that helps coordinate the flow of traffic, but one that is also considered a safety-sensitive role.
Davis was told he had to take a physical that would also include a drug test. Meil said that Davis immediately disclosed his status as a medical marijuana patient and that he wanted to withdraw his applicationapplication for block operator and instead bid for a non-safety-sensitive position, like a clerk or a janitor. But Meil says that NJ Transit denied his request, and because he had disclosed his marijuana usage, Davis was obligated to take a drug test.
When the drug test came back positive for marijuana, Davis was suspended and ordered by NJ Transit to go through a drug rehabilitation course, and told he would not be able to hold any position until he completed rehab. Now that he has done so, NJ Transit has yet to clear Davis for work, even in a non-safety-sensitive position.
"Despite suffering from a debilitating illness, he's trying his best to remain a productive member of society," Meil said. "The medicinal marijuana prescribed by his doctor helped ease his terrible pain and allowed him to lead a more normal life. But NJ Transit has forced Charlie to choose between his health and his job."
Davis' lawsuit, which may be the first legal test of New Jersey's medical marijuana laws, seeks protections for workers in non-safety-sensitive positions, Meil told HuffPost. The lawsuit also claims that for employees with disabilities who are also medical marijuana patients, transfer to a non-safety-sensitive position should be a reasonable accommodation when company policy about marijuana use prevents them from working in safety-sensitive positions.
"Mr. Davis is not a drug addict, but New Jersey Transit treated him like one," the lawsuit alleges.
Although medical marijuana was legalized in New Jersey in 2010, the law does not provide explicit protections for patients that would prohibit an employer from disciplining them for their legal use outside the workplace.
New Jersey's medical marijuana law says that employers are not required to "accommodate the medical use of marijuana in any workplace," but the law does not explicitly state whether an employer has the right to fire an employee who uses medical marijuana at home. And while the Americans with Disabilities Act protects most employees with serious medical conditions from discrimination, it doesn't protect their use of medical marijuana in states where it is permitted.
Laws similar to New Jersey's are in place in most of the other 20 states that have legalized medicinal marijuana use. One exception is Arizona, where an employer is prohibited from discriminating against a worker who has tested positive for marijuana and is a registered medical marijuana patient, as long as the employee doesn't have a "safety-sensitive" job, like heavy machinery operator or airline pilot.
NJ Transit did not respond immediately to a request for comment, but John Durso, an NJ Transit spokesman, told New Jersey's Star-Ledger last week that all employees applying to and occupying safety-sensitive positions at NJ Transit are "required to submit to and pass pre-employment and random drug tests in accordance with Federal Railroad Administration and Federal Transit Administration guidelines."
The U.S. Department of Transportation's marijuana policy is clear: "The Department of Transportation's Drug and Alcohol TestingDrug and Alcohol Testing Regulation does not authorize the use of Schedule I drugs, including marijuana, for any reason."
USDOT's policy goes so far as to call out medical marijuana specifically, saying that even "when states have passed medical marijuana initiatives" and a physician has recommended that an employee use medical marijuana, that employee's drug tests must still come back negative.
Similar cases to Davis' have been heard in California, Montana, Washington, Oregon and Colorado courts, and each has found in favor of the employer. The judges have said that because marijuana remains illegal at the federal level, employers can fire a medical marijuana patient who fails a drug test, even in states where the drug is legal for medical use.
In Colorado, the state's Supreme Court is preparing to hear the case of 34-year-old Brandon Coats, a medical marijuana patient on the state registry who was fired by satellite television providersatellite television provider Dish Network when he tested positive for THC, the main psychoactive ingredient in marijuana associated with the "high" sensation.
Coats sued the satellite televisionsatellite television giant, alleging that he had been illegally terminated. He has argued that the THC found in his body during the drug test did not prove that he was intoxicated at work and that he had never used medical marijuana in the workplace.
Like many employers, NJ Transit has a zero-tolerance drug policy that prohibits marijuana use, even for medical reasons. But drug testing for marijuana can be problematic for employersfor employers, because THC can stay in a person's body for more than 40 days -- long after a user may have felt the effects of the substance. By contrast, many stronger drugs linger for much less time in a person's system. Cocaine, for example, can leave the body within one to three days.
"There is no logical reason why an employee should not be permitted to use the drug in the privacy of his own home and come to work in a safety-sensitive position days later when the effects have clearly worn off," Meil said. "The law needs to catch up with reality in that respect."