Employees in wrongful termination lawsuits have faired poorly when the grounds for termination involve marijuana use. We have written about these frustrating cases time and again (and again). Courts have sided with employers even where the terminated employee is a sympathetic party who suffers from a debilitating medical condition, confines his use to off-hours, observes state law to a T, has a stellar employment history… and pretty much everything else you might want to see in a plaintiff. Truly, it’s been tough.
In wrongful termination lawsuits involving pot, the insurmountable hurdles for plaintiffs have been: (1) the fact that many employment relationships are “at will” and (2) the fact that most employment laws and contracts discuss “unlawful” activity as grounds for dismissal, or as grounds to deny accommodations under the federal Americans With Disabilities Act (and its state level counterparts). Because of the status of federal law, relief for cannabis users has been unattainable.
Last week in Oregon, someone bucked the trend. In an unexpected ruling, an arbitrator held that the Lane County government erred in firing one Michael Hirsch for off-duty use of medical marijuana. Mr. Hirsch, who is a 60-year-old prostate cancer survivor, will be reinstated to his job as a senior programmer and systems analyst next week. The arbitrator awarded him $21,550 in back pay for the six months since he was terminated. Very few people could have predicted such a result.
Like many of the plaintiffs in these actions, Mr. Hirsch is a sympathetic party. Not only does he use marijuana off hours for legitimate medical purposes, but he had received “a number of very positive messages and reviews” from supervisors. In addition to highlighting these facts, the arbitrator made a number of sensible observations: for example, the arbitrator wrote that even if Mr. Hirsch’s actions had violated county policy, his firing on a first offence “is far and away too harsh a punishment.”
Before we get too excited about this ruling, there is context to unpack. Mr. Hirsch was (and is again) a union employee. The contract governing his position provides that “disciplinary action may be taken for activities that take place outside of county premises on off-duty time only when the employee’s ability and effectiveness to perform his/her job is impaired.” The county’s drug-free workplace policy also contains an exception if a substance is taken under the supervision of a licensed health care professional and “does not present a safety hazard or otherwise adversely impact an employee’s performance.” Both of those stipulations seemed to work in Mr. Hirsch’s favor.
These days, however, fewer and fewer employees are covered by union contracts. At the federal level, the Department of Labor has been unwilling to show its hand on the issue of marijuana whatsoever. In addition, many existing union contracts likely do not contain language of the type that availed Mr. Hirsch. So it seems that this ruling will not have broad effect. Still, the union lawyer had a nice quote when she offered, “For a long time, many employers have believed that employers have a type of absolute immunity when they make employment decisions based on drug use including marijuana. This is because the case law has been so favorable for them. The Hirsch case … reminds employers that they can’t ignore fairness, humanity, and contract language when making employment decisions in the future.”
In addition to those big picture concepts, this case leaves us with a few key takeaways. First, every case is different because every case has different facts. Just because a body of law seems to have settled in a certain posture does not mean that new facts cannot disrupt the status quo. Second, as we have written before, arbitration is a key consideration in contracts that involve cannabis. And finally, legitimate cannabis use is a concept that seems to be gaining traction not just in the public esteem, but also among jurists. Let’s hope that trend continues.
Congratulations, Michael Hirsch.