Court Tosses Suit by Fired Kalispell Medical Marijuana User

By Beacon Staff

HELENA – The Montana Supreme Court says the state’s Medical Marijuana Act does not protect an employee from being fired for using marijuana.

Medical marijuana advocates said Friday that the court has misread the law.

Under the Montana law, doctors can prescribe marijuana for those suffering from a chronic or debilitating disease.

The state’s high court on Wednesday dismissed a lawsuit by a Kalispell man fired by Columbia Falls Aluminum Co. because of his state-sanctioned use of medical marijuana.

In July 2006, Mike Johnson tested positive for marijuana in a random drug test. The company said the 25-year employee could return to work if he submitted to additional drug tests and passed them. He refused and was fired.

Johnson filed a wrongful discharge suit and the District Court in Kalispell ruled against him.

In rejecting his appeal, the state Supreme Court said the medical marijuana law specifically provides that it does not require employers “to accommodate the medical use of marijuana in any workplace.”

Johnson’s attorney, John M. Wagner of Kalispell, had argued that to “accommodate” means the company would have to do something affirmative, such as provide a place for a worker to smoke marijuana during the day if his medical condition required it.

“In my view, the company didn’t have to do anything to ‘accommodate’ him. … They weren’t required to do anything, and that wasn’t addressed in the opinion. They glossed over that,” Wagner said Friday in a telephone interview with The Associated Press.

The state’s Medical Marijuana Act was enacted by voters in 2004. Its primary drafter was attorney Karen O’Keefe, director of state policies for the Marijuana Policy Project, a national advocacy group in Washington, D.C.

O’Keefe said Friday that the Montana Supreme Court opinion was “wrongly decided and counter to the letter and intent of the Medical Marijuana Act.”

“The act clearly says that a medical marijuana patient cannot be ‘penalized in any manner or be denied any right or privilege,'” O’Keefe said in an e-mail to The Associated Press. “Yet, Johnson was penalized for having used medical marijuana by being fired.”

Her comments were echoed by those of Tom Daubert founder and director of Patients and Families United, a medical marijuana advocacy group in Helena.

“I think the court misunderstood a fundamental part of our law,” Daubert said.

Johnson agreed with Wagner with respect to ‘accommodating’ the medical use of marijuana, saying it “merely means that an employer is not required to allow a patient to use and possess marijuana in the actual workplace.”

Representatives of Columbia Falls Aluminum Co. did not return a reporter’s phone calls Friday afternoon seeking comment on the ruling.

Thirteen states now have a medical marijuana law in place, according to the national advocacy group. Along with Montana those states are Hawaii, Alaska, California, Oregon, Washington, New Mexico, Nevada, Colorado, Michigan, Rhode Island, Vermont and Maine.

Several other states are considering similar legislation this year.

A bill to give medical marijuana patients better access to the drug died in the Montana Legislature last month after stalling in a House committee on a party-line vote.

The bill, sponsored by Sen. Ron Erickson, D-Missoula, would have increased from one ounce to three the amount of marijuana that a state-licensed patient or “caregiver” could possess.

It also sought to increase the number of plants a licensed grower could have and to list additional diseases that could be legally treated with marijuana.