MMJ User Sues Company for Being Fired Over Failed Drug Test

By McCarton Ackerman 08/12/14

The case of a New Mexico employee is but one of many instances where state law conflicts with employer policy.

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A medical marijuana user in New Mexico is taking action against the company that fired her for failing a drug test, claiming that she is the victim of discrimination.

Donna Smith, a former physician’s assistant at Presbyterian Health Services, was diagnosed with Post-Traumatic Stress Disorder in 1997 after serving in the military. Her lawsuit argues that her dismissal violates the New Mexico Human Rights Act, which prohibits discrimination against those with serious medical conditions. Her attorney, Jason Flores-Williams, called it absolute hypocrisy that she wouldn’t be fired for alcohol use outside of work, but was for doctor-recommended marijuana use despite having a state-issued medical marijuana card.

“As far as medical patients are concerned, a lot of these people aren’t able to work unless they’re using marijuana—and then they’re prevented from working once they’re using it,” said Jessica Gelay, the Drug Policy Alliance’s policy coordinator for New Mexico. “As long as they’re not coming into work impaired, it should be none of the employer’s business.”

PHS Senior Vice President Joanne Suffis said in a statement that the company was simply following federal guidelines because “Presbyterian has a mandate under federal law to provide a drug free workplace.” Their communications director, Kristen Krebs, also clarified that Smith was not fired because she was hired through an outside staffing agency. Presbyterian reportedly “informed the staffing agency that we did not wish to continue her assignment.”

Similar cases in recent years have ruled against medical marijuana users. The Ninth Circuit Court of Appeals rejected a 2012 lawsuit from medical marijuana users due to language in the federal Americans With Disabilities Act which states illegal drug use is not protected. However, a handful of states, including Arizona, have specific protections that prevent medical marijuana users from being punished at work for using the drug at home.

Twenty-three states across the country and the District of Columbia currently allow medical marijuana use.

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McCarton Ackerman is a freelance writer and editor living in Portland, Oregon. He has been a contributor for The Fix since October 2011, writing on a wide range of topics ranging from medical marijuana in Colorado to the world's sexiest drug smugglers. Follow him on Linkedin and Twitter.