Earlier this month, a West Virginia appeals court upheld a circuit court’s decision to dismiss a lawsuit brought by a terminated employee against her former employer, which the Plaintiff alleged was contrary to state human rights and medical cannabis statutes. Specifically, the Plaintiff claimed her positive test for cannabis was not terminable as she ingested cannabis in compliance with Ohio’s medical cannabis regime.[1]
The Plaintiff, Lisa Daniels, was a customer service agent at Yeager Airport in West Virginia. In 2020, she was terminated from her position after she tested positive for THC during a drug test administered after she resumed her job upon her return to work after a medical leave of absence that arose out of nerve pain in her hand and arm.
Even though her position was physically in West Virginia, Ms. Daniels resided in the neighboring state of Ohio. Ms. Daniels resided in Ohio for the entirety of her employment and while on medical leave. A year prior to this leave of absence, Ms. Daniels obtained a medical cannabis license from her physician, which authorized her to use medicinal cannabis pursuant to Ohio’s medical cannabis regime. Ms. Daniels did not obtain a West Virginia medical cannabis license. After she tested positive, Ms. Daniels conceded that she took THC edible gummies seventeen days before her test to treat her nerve-related pain. While she offered to enter a rehabilitation program, her employer still decided to terminate her.
Ms. Daniels then sued her former employer. She alleged that her dismissal violated the West Virginia Medical Cannabis Act (WVMCA), which protects medical cannabis licensees in West Virginia from being discharged solely on the basis of their status as licensees.[2]
The circuit court dismissed her claim, which was affirmed by the Appellate Court. Both courts pointed out that the employment protections provided under the WVMCA only apply to individuals who are “certified to use medical cannabis,” a term which is defined as specifically meaning being “authorized in a certification under” the WVMCA, i.e., being licensed within the framework of the West Virginian medical cannabis regime in particular.[3] Accordingly, and regardless of her status as a medical cannabis licensee in Ohio, Ms. Daniels did not have a West Virginia medical cannabis license nor reside in West Virginia at the time of her dismissal. Therefore, she was not considered a protected patient under the West Virginia statute.
The courts further rejected Ms. Daniels’ argument that her dismissal was contrary to the public policy of the WVMCA. One of this statute’s objectives is the prevention of adverse employment-related consequences for those who legally use medicinal cannabis. With a view to the WVMCA as a whole, the courts found that the WVMCA explicitly and consistently limits its application to West Virginia-based medicinal cannabis patients who are licensed under the state’s licensing scheme. Even the WVMCA’s reciprocity provision does not allow for out-of-state medicinal cannabis patients to lawfully purchase or use the drug in West Virginia. Rather, it merely allows other states to enter into an agreement with West Virginia to allow terminally ill licensees based in West Virginia to purchase and use cannabis in these other states. The courts thus concluded that nothing about the WVMCA suggests its drafters intended to extend its employment protections to out-of-state medicinal cannabis users licensed under another state’s scheme.
This case serves as a reminder of how individual states’ medical cannabis regimes are siloed from each other. The result is the creation of practical problems for medicinal cannabis patients who regularly travel between states, especially for employment purposes. This problem for out-of-state cannabis users is a by-product of the federal prohibition of cannabis under the Controlled Substances Act which continues to prioritize the prevention of the inter-state transfer of cannabis.
Of the 38 states that have comprehensive medical cannabis regimes, 24 offer protections against adverse employment-related consequences for in-state licensees.[4] While some states’ medical cannabis statutes include reciprocity provisions that allow medicinal cannabis patients licensed under another state’s regime to purchase and/or use cannabis in its jurisdiction, most of these states do not extend their employment-related protections to those who only have their out-of-state medicinal cannabis license. The exceptions are states that have also legalized the recreational use of cannabis, which tend to offer broader employment-related protections for cannabis users employed domestically. For example, a recently passed California law prohibits employers from discriminating against employees for lawfully using cannabis off-duty.[5] An interpretation of this provision is that all cannabis users, regardless of which state they are licensed to use cannabis medicinally, receive this protection.
If you are a medicinal cannabis user who is licensed in one state and is employed in and regularly travels to another state for work, there could easily be confusion as to which state’s medicinal cannabis regime is applicable. As seen in the Daniels v. Global Services, LLC case, a reliance on a policy-based argument that seeks to expand the scope of the protections of a medicinal cannabis license from the state where the user is domiciled to the other state where they are employed may be futile. It could be in both the employer’s and employee’s best interests to seek to resolve their dispute about the permissibility of where medicinal cannabis can be consumed through the use of an alternative dispute resolution provider instead of through litigation. This is especially so if the highest court of the state where the employee is located has not definitively ruled on the issue of reciprocity, let alone established legislation that clearly details whether out-of-state medicinal cannabis licensees will receive domestic employment law protections.
(Justin Hovey is a second-year law student and summer student at CansultED. CansultEd is an alternative dispute resolution company that operates exclusively in the US Cannabis space.)