BY ARTHUR S. LEONARD | A New Mexico federal court has found that legal use of medical marijuana does not protect a patient from discharge under their employer’s drug use policy. US District Court Judge William P. Johnson, on January 7, ruled that Tractor Supply Company, a national employer doing business in 49 states, is not required to accommodate the disability of Rojerio Garcia — who is using medical marijuana under New Mexico’s Compassionate Use Act to deal with the effects of his HIV infection — by waiving its requirement that its workers refrain from pot use.
During his job interview at Tractor Supply, Garcia told the hiring manager that he was HIV-positive and enrolled in the state’s Medical Cannabis Program. After he was hired, he was required to take a drug test, which came up positive for marijuana. He was then discharged under the company’s zero-tolerance drug use policy.
Garcia complained to the New Mexico Human Rights Division alleging disability discrimination, arguing that the employer was required to accommodate his disability by allowing him to use medical marijuana under the state’s program. The Division concluded there was no probable cause to believe its anti-discrimination statute had been violated.
Garcia next filed suit in state court, claiming he was dismissed because of his “serious medical condition,” an unlawful action, he claimed, since he was using medical marijuana to deal with his HIV symptoms on his physician’s recommendation and under a state program.
Tractor Supply exercised its right to have the case removed to federal court, arguing that the US Controlled Substance Act (CSA), which outlaws marijuana use, would preempt Garcia’s state law claim, and that the New Mexico anti-discrimination law did not require the company to employ marijuana users. Judge Johnson’s opinion does not specify whether the basis for federal jurisdiction is the fact that Tractor Supply is incorporated in another state or the fact that US law preempts the plaintiff’s state law claim.
The court sided with Tractor Supply’s argument that it did not discharge Garcia because of a disability, but rather because of his use of marijuana violated its drug policy. The company argued that the medical marijuana statute did not require it to forego applying its drug use policy, and the court found that even though the law protected Medical Cannabis program participants from state law penalties for using cannabis, it had no effect whatsoever on the employer-employee relationship.
“Here, Mr. Garcia was not terminated because of or on the basis of his serious medical condition,” Johnson wrote. “Testing positive for marijuana was not because of Mr. Garcia’s serious medical condition (HIV/ AIDS), nor could testing positive for marijuana be seen as conduct that resulted from his serious medical condition. Using marijuana is not a manifestation of HIV/ AIDS.”
The court also refused to buy Garcia’s argument that because the US Department of Justice refrains from prosecuting individuals when they obtain medical marijuana through a state program such as New Mexico’s, its use cannot lawfully be the basis of a discharge from employment. The attorney general’s discretionary decision not to prosecute, Johnson found, “is not law,” and he was not going to tell a national employer operating in 49 states that it would have to modify its company-wide drug policies to take account of compassionate use laws in a handful of states. The state’s medical marijuana statute and its Human Rights Act, he concluded, do “not provide a cause of action for Mr. Garcia as medical marijuana is not an accommodation that must be provided for by the employer.”
On the question of federal law preempting Garcia’s right to use marijuana under the state’s medical program, Johnson looked to a ruling on this question from the Oregon Supreme Court, in which a concurring judge wrote that “the fact that the state may exempt medical marijuana users from the reach of the state criminal law does not mean that the state can affirmatively require employers to accommodate what federal law specifically prohibits.” Johnson agreed, writing, “To affirmatively require Tractor Supply to accommodate Mr. Garcia’s illegal drug use would mandate Tractor Supply to permit the very conduct the CSA proscribes.”
States have generally not moved to protect medical marijuana users from employment discrimination, and this ruling from a New Mexico federal district court is consistent with the trend. The bottom line, it appears, is that employers operating in New Mexico or other states that have decided to allow compassionate use of marijuana by people whose medical conditions justifies it are not required to accommodate such use, even if the triggering medical condition is considered a disability under the state’s anti-discrimination law.
Garcia is represented by E. Justin Pennington of Albuquerque. The company was represented by Albuquerque attorney Jessica R. Terrazas and Austin, Texas, attorney Michael W. Fox.