Another Washington court has held that an employer lawfully may terminate an employee for using marijuana, even when the employee had a prescription and used it off-duty. Swaw v. Safeway, Inc., No. C15-939 (W.D. Wash. Nov. 20, 2015).

After a workplace injury, Safeway tested its employee, Swaw, for drugs. Swaw tested positive for marijuana due to the use of medical marijuana outside of work, subject to a valid prescription. Safeway terminated him for testing positive for a controlled substance on the job or on company premises, pursuant to its drug-free workplace policy. Safeway’s policy defined “controlled substance” to include “all chemical substances or drugs listed in any controlled substances acts or regulations applicable under federal, state or local laws.” Swaw brought suit, alleging his former employer unlawfully discriminated against him on the basis of a disability because the employee’s medical marijuana use was pursuant to a valid prescription. In addition, he argued that he was treated more harshly than employees found to be intoxicated by alcohol at work. (Washington has both medical marijuana and recreational marijuana laws).

The Court dismissed all of Swaw’s claims, holding that Washington law does not impose upon employers a duty to accommodate medical marijuana in drug-free workplaces. In addition, the Court was unconvinced by the employee’s claim that he was subject to disparate discipline when compared to employees who were intoxicated by alcohol. The Court noted that, unlike alcohol, marijuana remains a controlled substance that is illegal under federal law. Because users of an illegal intoxicant are not a protected class, the employee could not state a claim for employment discrimination on the basis of a disability. The Court cited to a Washington Supreme Court case rejecting an employee’s claims for wrongful termination, holding that the state Medical Use of Marijuana Act does not provide a civil cause of action for wrongful termination based on the employee’s authorized medical marijuana use, Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 257 P.3d 586 (Wash. June 9, 2011) – discussed here.