When Michael Swaw tested positive for marijuana after a workplace injury he was promptly fired. Michael Swaw was an employee at Safeway’s beverage plant in Washington state.  Safeway maintains a drug-free workplace, its policy prohibits “testing positive for” a controlled substance on the job or on company premises.  That policy defines a controlled substance as “all chemical substances of drugs listed in any controlled substances acts or regulations applicable under federal, state, or local laws.” Although Swaw had agreed to that policy he quickly filed a suit against Safeway asserting claims for employment discrimination on the basis of disability under the Washington Law Against Discrimination (“WLAD”).

Why? Because he had a license to use medical marijuana.

Swaw says he used the marijuana only after hours and under a valid Washington state medical license. However, Washington law does not require employers to accommodate the use of medical marijuana where they have a drug-free workplace, even if the marijuana is used only off site and only to treat a disability.  Furthermore, the use of marijuana for medical purposes remains unlawful under federal law.  Therefore Safeway was under no obligation to make an exception for Swaw based on his medical marijuana prescription.

Swaw also claimed that Safeway disciplined him more harshly than employees found to have been actually intoxicated with alcohol at work.  However, there is no comparison between being under the influence of alcohol and using marijuana. Marijuana is a Schedule 1 controlled substance which is illegal under federal law while alcohol is not.

Ultimately the federal court threw out Swaw’s lawsuit against Safeway.

Washington, DC and twenty three other states allow the use of medical marijuana.  The decision of Michael Shaw’s case is in line with court rulings in other states such as Colorado and Michigan.  Some states do require the employer to prove that an employee was impaired by the marijuana in order to fire that employee.

For the most part these court decisions do little to impact drug-free workplace policies and employee safety.  Employers are still able to have a zero-tolerance policy and are free to enforce the policy by firing an employee who violates it.  However, as marijuana legislation changes so may court decisions of this kind.