D.C. Sees Newest Test Case for Staff Looking for “Reasonable Accommodation” for Off-Duty Health-related Marijuana Use


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 Performs, who claims that she was denied affordable accommodation and placed on an indefinite leave of absence right after disclosing that she is a health-related marijuana card-holder beneath the District’s health-related marijuana system.  Especially, 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 health-related 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 right 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) mainly because she was operating in a “safety sensitive position.”

The District’s actions seem to be in response to a new D.C. law supplying employment protections to D.C. government staff who are lawfully enrolled in a health-related marijuana system.  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 men and women participating in a health-related marijuana system, unless they had been operating in a “safety sensitive position.”  Barber has argued that the D.C. Public Performs not too long ago 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 beneath the Americas with Disabilities Act (ADA) due to the reality that marijuana remains an “illegal drug” beneath the Controlled Substance Act (CSA) and the ADA, Ms. Barbar becomes the most up-to-date in a current trend of staff looking for to make use of state or neighborhood anti-discrimination laws as a signifies of requiring their employers to deliver “reasonable accommodation” of their off-duty health-related marijuana use.

As several of our Blunt Truth readers might recall, a New Jersey Court of Appeals not too long ago 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 though New Jersey’s Compassionate Use Health-related Marijuana Act does not need accommodation of health-related marijuana use, New Jersey’s Law Against Discrimination may well need an employer to deliver affordable accommodation and overturned the decrease 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 – specifically for these in the private sector in D.C. exactly where employers are presently not prohibited from taking employment action against these working with marijuana for health-related causes constant with D.C. law.  Whilst it remains to be noticed how this new lawsuit will be resolved in the courts, it serves as however a further cautionary tale for employers who retain blanket policies prohibiting any form of off-duty marijuana use or who otherwise implement “zero tolerance” drug testing policies.

For additional information and facts on this problem, employers might get in touch with this author or your favored Seyfarth Cannabis lawyer.





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