Compassionate Use Act and Disability Discrimination Laws Do Not Shield HIV-Positive Marijuana User from Discharge

Judge William P. Johnson of the U.S. District Court in New Mexico ruled on January 7 that a man living with HIV who is using medical marijuana under New Mexico’s Compassionate Use Statute could not contest his discharge under his employer’s drug use policy, finding that the employer was not required to accommodate the man’s disability by waiving its requirement that its employees refrain from using marijuana. Garcia v. Tractor Supply Company, 2016 WL 93717 (D. New Mex.).

The plaintiff, Rojerio Garcia, alleges that his physician recommended use of medical marijuana to deal with some of the effects of his HIV infection.  He obtained it by enrolling in the state’s Medical Cannabis Project operated by the New Mexico Health Department under authority of the state’s Compassionate Use Act (CUA). The Health Department determined that Garcia met all statutory and regulatory criteria for participation.

With his symptoms under control, he applied for a management level job for which he was qualified with Tractor Supply Company, a national employer doing business in 49 states.  During his interview, he told the hiring manager that he was HIV positive and was enrolled in the New Mexico Medical Cannabis Program.  He was hired and directed to report to the company’s testing facility for drug testing as the company required for all new hires.  Garcia tested positive for having used marijuana, of course.  He was then discharged under the company’s zero-tolerance policy for drug use.

Garcia complained to the New Mexico Human Rights Division alleging disability discrimination, arguing that the employer was required to accommodate his disability (HIV infection) by allowing him to use medical marijuana under the state’s program. The Division found no probable cause to believe its anti-discrimination statute was violated.

Having exhausted administrative remedies, Garcia filed suit in New Mexico District Court in Santa Fe, claiming he was dismissed because of his “serious medical condition” (HIV infection), which he claimed was unlawful because he was using medical marijuana to deal with his HIV symptoms upon his physician’s recommendation under a state program.  The employer removed the case to federal court, arguing that the federal 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 diversity (Tractor Supply being incorporated in another state) or federal question (the federal preemption argument).

The judge divided his analysis into two parts, the first dealing with the confluence of the state’s Human Rights Act and the Compassionate Use Act, the second with the federal preemption argument.

The court sided with Tractor Supply, which argued that it did not discharge Garcia because of a disability, but rather because of his use of marijuana in violation of the company’s drug policy. Tractor Supply argued that the CUA does not require it to forego applying its drug use policy to employees in New Mexico.  The court agreed with this argument, finding that although the CUA authorized the state’s health department to set up the Medical Cannabis program and shielded those enrolled in the program from any state law penalties for using cannabis obtained through the program, the law had no effect on the employer-employee relationship whatsoever.

“Here, Mr. Garcia was not terminated because of or on the basis of his serious medical condition,” wrote the judge. “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.”

Garcia had argued that because the U.S. Department of Justice was refraining from prosecuting individuals under the CSA when they obtained medical marijuana through a state program such as New Mexico’s, the court should, in effect, find that their use of marijuana could not lawfully be the basis for their discharge, but the court wasn’t buying this argument either.  Judge Johnson agreed with the employer that “reliance on the enforcement policy of the United States Attorney General is not law, and instead, is merely an ephemeral policy that may change under a different President or different Attorney General.”  The court wasn’t 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.

“In sum,” wrote Johnson, “the Court finds that the CUA combined with the New Mexico Human Rights Act does not provide a cause of action for Mr. Garcia as medical marijuana is not an accommodation that must be provided for by the employer.” Even though New Mexico courts had found that under certain circumstances the state’s Workers Compensation program was required to pay for medical marijuana, “the Court finds a fundamental difference between requiring compensation for medical treatment and affirmatively requiring an employer to accommodate an employee’s use of a drug that is still illegal under federal law.”

Turning to the federal preemption argument, Johnson rest his ruling on a distinction between federal and state laws and how they function regarding medical marijuana. The federal law makes use illegal, but the DOJ has exercised discretion not to prosecute.  The state law, on the other hand, provides immunity from state prosecution only.  Johnson looked to a ruling on this issue by the Oregon Supreme Court, in which a concurring judge stated “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.”

“State medical marijuana laws that provide limited state-law immunity may not conflict with the CSA,” wrote Judge Johnson. “But here, Mr. Garcia does not merely seek state-law immunity for his marijuana use.  Rather, he seeks the state to affirmatively require Tractor Supply to accommodate his marijuana use.  Thus, the Court finds the Oregon cases closer to the facts of this case and more persuasive. 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.”

In general, states have 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 as a matter of state policy to allow compassionate use of marijuana by people whose medical conditions would justify it, are not required to accommodate such use, even if the medical condition that justifies the use, such as HIV infection, is considered a disability under the state’s anti-discrimination law.

Garcia is represented by E. Justin Pennington of Albuquerque. The company’s lawyers include Jessica R. Terrazas of Albuquerque and Michael W. Fox of Austin, Texas, both with firms in those cities.

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