Medical Marijuana User Wrongly Denied Internship, R.I. Judge Rules

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By Aaron Nicodemus

A Rhode Island fabrics company violated the state’s medical marijuana law when it refused to hire a paid intern who had medical permission to use the drug, a state superior court judge ruled.

The case illustrates the need for Rhode Island companies to balance disability rights afforded under the state’s medical marijuana law with their own drug and safety requirements.

The May 23 ruling is problematic for employers, particularly manufacturers, said Mark W. Freel, attorney and board member of the Rhode Island Manufacturers Association. Employees who come to work high can present serious safety problems, he said.

“The judge is basically saying that you can’t refuse a job to a person on the basis of medical marijuana use,” Freel said. “These may be a unique set of facts to this case, but it is a big issue and a big problem for employers in this state.”

Darlington Fabrics Corp. violated the state’s Hawkins-Slater Act when it refused to hire Christine Callaghan, a master’s degree student at the University of Rhode island who used medical marijuana to handle migraine headaches, Rhode Island Superior Court Judge Richard A. Licht concluded Callaghan v. Darlington Fabrics Corp. , R.I. Super. Ct., No. PC-2014-5680, 5/23/17 .

Darlington rescinded the offer of a paid internship in 2014 not because Callaghan had a medical marijuana card, but because she would fail a drug test. While Callaghan had promised not to take the drug at work or arrive at work high, Darlington argued to the court that it requires all new employees to pass a drug text because it has heavy machinery that should not be operated by someone on drugs. The company required all new employees to pass a drug test before being hired.

That argument did not persuade Licht.

“It is absurd to think that the General Assembly wished to extend less protection to those suffering with debilitating medical conditions and who are the focus of the Hawkins-Slater Act,” Licht said. Callaghan is disabled as a result of her medical condition, for which her doctor prescribed marijuana as a treatment, and she should be protected from discrimination under the state law, he said. Licht also dismissed Darlington’s argument that federal laws outlawing marijuana should trump state law.

More Than 17,000 Marijuana Registrations

According to the Rhode Island Department of Public Health, the state has 17,757 active medical marijuana patient registrations.

If the law were to be interpreted as attorneys for Darlington argued, Judge Licht wrote, the “protections the law affords would be illusory.”

“This practice would place a patient who, by virtue of his or her condition, has to use medical marijuana once or twice a week in a worse position than a recreational user,” he wrote. “The recreational user could cease smoking long enough to pass the drug test and get hired, and subsequently not be subject to future drug tests, allowing him or her to smoke recreationally to his or her heart’s content. The medical user, however, would not be able to cease for long enough to pass drug test, even though his or her use is necessary to treat or alleviate the pain, nausea, and other symptoms associated with debilitating medical conditions.”

That said, employers do not have to make accommodations for someone who comes to work high on drugs.

“If an employee came to work under the influence, and unable to perform his or her duties in a competent manner, the employer would thus not have to tolerate such behavior,” Licht said.

Tests Only Show Marijuana Use

Freel, of the manufacturers association, said that testing experts he has talked to say that once someone is a regular user of marijuana, there is a baseline presence of the drug in his or her system. The tests can’t measure if someone is high, only that he or she used marijuana, Freel said.

“That leaves employers having to trust their employees when they say they won’t show up high on the job,” he said. “The judge says employers don’t have to tolerate drug use in the workplace, but it still leaves you unable to know for sure if they’re under the influence.”

Darlington Fabrics Co. of Westerly, R.I., manufactures fabrics for athletic, medical, fashion, and industrial uses, according to its website. The company is owned by The Moore Company, also based in Westerly.

“This decision sends a strong message that people with disabilities simply cannot be denied equal employment opportunities because of the medication they take,” Callghan’s attorney, Carly B. Iafrate, who works as a volunteer attorney with the ACLU of Rhode Island, said in a statement on the ACLU’s website."The judge’s decision makes clear that this law is not an empty promise.”

Darlington is “disappointed in the judge’s decision and will be appealing to the Rhode Island Supreme Court,” the company’s attorney, Meghan E. Siket, told Bloomberg BNA in an email. Siket is a partner with the Providence law firm Whelan, Corrente, Flanders, Kinder & Siket LLP.

To contact the reporter on this story: Aaron Nicodemus in Boston at anicodemus@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

For More Information

To see the judge's ruling, visit http://src.bna.com/pd3

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