An employee with the D.C. Department of Corrections, represented by Karey L. Hart and Daniel S. Crowley, won reinstatement with full back pay and benefits after being fired for medical marijuana use.

In September of 2018, the DOC removed the employee after she tested positive for marijuana during a random drug screening. Although the DOC admitted she was never impaired at work, and the employee provided her medical marijuana prescription to human resources, the DOC claimed to have a zero-tolerance policy prohibiting any marijuana use. The employee’s union—the Fraternal Order of Police Department of Corrections—invoked arbitration to contest the termination.

Although the D.C. Council legalized marijuana use in the District of Columbia, employees holding safety-sensitive positions may still be subjected to random drug testing. To balance an employee’s privacy rights with the District’s drug testing policy, D.C. Human Resources issued an instruction under which an employee is not required to disclose their medical condition or use of medical marijuana. If the employee tests positive during a screening, the employee then has the option of producing evidence of enrollment in a legal medical marijuana program to explain the positive test result.

However, DCHR’s instruction does not explicitly say what the agency must do when an employee produces a prescription. Though it seems obvious that the test result should then be reported to the employer as negative—protecting the employee’s job and medical privacy—the instruction is incomplete. Relying on this error, the DOC claimed it could rely on its own drug testing policy prohibiting employees from using medical marijuana.

The arbitrator “reluctantly” agreed with the DOC that its own policy controlled, describing the DCHR instruction as “misleading and hypocritical in the message it sends to District employees who use or may seek to use medical marijuana” and saying “[t]he system cries out for clarification and consistency.” Nevertheless, the arbitrator noted that the DOC’s own zero-tolerance policy applied only to illegal drugs, and because marijuana is not illegal in the District of Columbia, it could not fire the employee.

As a result, the employee will be reinstated, with full backpay and benefits. HANNON LAW GROUP will also ask the arbitrator to pay all the attorneys’ fees the union spent fighting the termination. The full decision can be read here: Opinion and Award.

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