By Josh Farley
Tuesday, January 18, 2011
OLYMPIA — How far does the state’s medical marijuana law stretch?
Washington’s Supreme Court took on the issue Tuesday, hearing arguments from attorneys in the case of an East Bremerton medical marijuana patient fired by Teletech for failing a drug test in 2006.
Michael Subit, attorney for the woman dubbed “Jane Roe,” argued that voters in 1998 would be “flabbergasted” to hear someone could be fired for using medical marijuana away from work, in her case to alleviate migraine headaches.
“The Legislature understood (voters) were giving broad permission” to use marijuana as medicine, Subit argued. ” … and that’s why they can’t be fired.”
But James Shore, attorney for Teletech, said the law passed by voters is specific in its scope and provides a defense in court only to patients who have a doctors’ recommendation. It does not offer protection for employment.
“An employer could permit it in the workplace if they want to,” Shore said of medical marijuana use. “But they don’t have to.”
Shore read to the justices a passage in the medical marijuana law that says it doesn’t accommodate medical marijuana use “in any place of employment.”
“There’s nothing ambiguous in this act,” Shore said. “It means what it says and it says what it means.”
But Subit equated the use of medical marijuana to the use of other pain-killing drugs and asked how, if Jane Roe was using the drug away from employment and not working in a “safety sensitive” job, she could be dismissed when state law gives her the right to use the drug.
Jane Roe sued in 2007 after being fired from Teletech’s call center off Highway 303 in Bremerton in late 2006. The case was thrown out by Kitsap County Superior Court Judge Sally F. Olsen in 2008.
The Tacoma-based Court of Appeals upheld Olsen’s decision, but Jane Roe appealed it to the state Supreme Court, which accepted review last year.
Justices pelted both attorneys with questions Tuesday. Newly elected justice and Bainbridge Island resident Charlie Wiggins asked Subit how the medical marijuana law passed by voters extended to employment. Subit responded by saying the law was “very broad.”
Justice Tom Chambers pointed out to Shore that Jane Roe wanted to use medical marijuana at home and not while working. Shore answered that by saying if any employee who’s used marijuana comes to work, it’s in his or her system — and therefore in the workplace.
Shore added that “across the plaza,” the Legislature was seeking clarifications to medical marijuana laws this session — including clarifying employment issues. If voters had been clear on the topic of employees using medical marijuana, why would lawmakers seek to clarify it, he asked the justices.
Marijuana is illegal under federal law, which prompted Jane Roe to keep her name out of the lawsuit. Its illegality under that law was a point brought up by Chief Justice Barbara Madsen. But Subit replied that Roe wasn’t employed by a federal contract.
The court will return with a decision in the case in the coming months.