Under the Delaware Medical Marijuana Act, employers may not discriminate against state-licensed medical marijuana patients regarding hiring, terminating, or other conditions of employment. However, instances of workplace discrimination against this class of employees are increasing as medical marijuana use expands.
Delaware Online recently quoted Patrick C. Gallagher of Jacobs & Crumplar, P.A., regarding the rise of litigation involving employment discrimination and Delaware medical marijuana patients. (Delaware Online is part of the USA Today network.)
“It is a very new area of the law, and we are just starting to see how the courts are dealing with it,” said Gallagher. “I think that class of people who are going to have access to medical marijuana is going to expand and the possibility for discrimination is also going to expand.” At least three Delaware residents have filed lawsuits claiming employers have discriminated against them for using medical marijuana.
The Delaware Department of Health and Social Services issues identification cards to qualified medical marijuana patients. A qualifying patient is someone diagnosed by a licensed physician as having a debilitating condition that does not respond to conventional treatment. Debilitating conditions may include the following:
Delaware legislators are considering further expansion of the Medical Marijuana Act to include more medical conditions, such as chronic anxiety.
In the lawsuits filed to date, employers are firing or otherwise discriminating against medical marijuana patients after the workers have been offered a job or have been employed.
In one case cited in Delaware Online, a veteran suffering from PTSD turned to medical marijuana after unsuccessfully trying many other prescribed medications to treat chronic sleep problems. The veteran was hired by various employers after disclosing his state-licensed medical marijuana patient ID but was subsequently fired after employer-mandated drug tests detected levels of marijuana. In another case, a card-carrying medical marijuana patient was denied a permanent position by her employer due to her marijuana use.
There are likely several reasons for this type of discrimination. Employers are generally uncomfortable with seeing positive drug test results. They may fear that the employee will show up to work under the influence of, or use drugs while at work, although that would void the protections which the employee enjoys under the Delaware Medical Marijuana Act.
Employers may also be concerned about federal law, which still classifies marijuana as an illegal drug with no medical benefit. However, the Delaware Superior Court has ruled that federal law does not pre-empt Delaware’s Medical Marijuana Act in matters of discrimination in the workplace.
Although Delaware initially passed the Medical Marijuana Act in 2011, the first dispensary in the state did not open until 2015. There are currently more than 7,000 medical marijuana patients in Delaware holding valid state-licensed IDs. As the law expands to cover more medical conditions, the number is expected to grow as well as the percentage of cardholders seeking employment.
Workers taking legal prescriptions for opiates do not face employment discrimination in the same way that medical marijuana patients do. That may change as more worker discrimination cases make their way into the courts.
If you are a state-licensed medical marijuana patient who has experienced workplace discrimination, call the Wilmington employment discrimination lawyers at Jacobs & Crumplar, P.A. We stand ready to fight for your rights, which are guaranteed under the Delaware Medical Marijuana Act. Call us today at 302-656-5445 or contact us online to arrange an initial consultation. From our offices in Wilmington and Georgetown, Delaware, we serve clients throughout the state, including the areas of Dover, New Castle County, and Sussex County.