Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law
Lance Carlson v. Charter Communications, LLC, USCA, 9th Circuit, No. 17-35917
§§50-46-320(4)(b) and 50-46-320 (5) of the Montana Marijuana Act [MMA] neither bars employers from prohibiting their employees from using marijuana nor authorizes wrongful termination or discrimination suits against employers.
After Charter Communications fired one of its employees, Lance Carlson, for his legal marijuana use outside of work, in violation of the company's employment policies set out in its employment handbook, Carlson sued Charter alleging wrongful termination and unlawful discrimination.
A Montana District Court dismissed Carlson's complaint and then refused to certify the question of whether these provisions of the MMA were constitutional to the Montana Supreme Court. Carlson appealed the Montana District Court's ruling.
The United States Circuit Court of Appeals, 9th Circuit, affirmed the Montana District Court's ruling explaining that:
[1] the MMA does not preclude a federal contractor from complying with all the requirements of the Drug-Free Workplace Act (DFWA), 41 U.S.C. §8102; and
[2] the MMA does not violate the Montana constitution.*
The Circuit Court observed that MMA is "rationally related to Montana’s legitimate state interest in providing 'careful regulation of access to an otherwise illegal substance for limited use by persons for whom there is little or no other effective alternative' while avoid[ing] entanglement with federal law.” In addition, the Circuit Court, noting that the United States Congress had adopted an appropriations rider currently restricting the Department of Justice from spending funds to prosecute individuals who comply with state marijuana laws, opined that "this temporary rule does not undercut Montana
In the words of the Circuit Court, "[t]he district court did not abuse its discretion in denying Carlson’s request to certify the question whether sections 50-46-320(4)(b) and (5) are constitutional to the Montana Supreme Court, because it is not an unclear question of state law appropriate for certification."
Lisa M. Schaffer, Esq., in an article posted on the Internet by FindlLaw,** notes that "A state could have a Marijuana Act that specifically prohibits employers from requiring drug-free employees. For instance, in 2018, Maine became the first state to protect workers and their non-workplace marijuana use by forbidding employers from drug testing for marijuana. Specifically, Maine
* The Carlson decision is posted on the Internet at: