Notification required?

[Nausicaa]

Hello, a few months ago I was hired for a new job. Due to the economy, my start date kept getting pushed back but I am finally going to begin training next January. This is a really good job and I do NOT want to blow it. My offer letter stipulated that my position was contingent on a "favorable background investigation". I submitted the background check form and there were no issues. There has been no indication at any point during the interview or hiring process that I'm required to pass a drug test - yet, that doesn't stop my stoner paranoia from getting me down.

My question is simply if employers are required to notify their prospective employees about their drug testing policy if it's required for employment? I have this fear in the back of my head that I'll arrive at the training and be quickly pulled aside for them to obtain my urine. But, surely a company wouldn't get all their new hires set up and ready to train, travel included, only to give a drug test that might terminate some peoples' employment?

I always have some quick-fix handy, just in case. But I don't want to be caught off guard, you know? I feel like my concern is ridiculous and unnecessary, so is it?

Nausicaa Reviewed by Nausicaa on 12-22-2009. Notification required? Hello, a few months ago I was hired for a new job. Due to the economy, my start date kept getting pushed back but I am finally going to begin training next January. This is a really good job and I do NOT want to blow it. My offer letter stipulated that my position was contingent on a "favorable background investigation". I submitted the background check form and there were no issues. There has been no indication at any point during the interview or hiring process that I'm required to pass Rating: 5

[jamessr]

This is a Washington State case. But, hopefully it will help with understanding the issues your dealing with.


CASE SUMMARY

PROCEDURAL POSTURE: After respondent employer rescinded a conditional offer of employment it had made to appellant employee because she failed a pre-employment drug screening test, the employee sued the employer for wrongful termination. The Kitsap Superior Court, Washington, rendered a summary judgment in favor of the employer. The employee appealed.

OVERVIEW: On appeal, the employee contended Washington's Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, implied a civil cause of action to sue an employer who violated the Act's provisions. Alternatively, she contended the Act expressed a public policy favoring medical marijuana use. The appellate court disagreed, holding that the Act provided only a defense to criminal prosecution for the medical use of marijuana in compliance with its provisions; the Act neither implied a private right of action nor expressed a public policy to establish a cause of action for wrongful termination of employment. The average informed lay voter would have understood from reading the Act that it was intended to address one subject, criminal prosecutions, from a physician's decision to recommend, and a patient's decision to use, marijuana as treatment for a terminal or debilitating illness. The plain language of the Act did not demonstrate any intent to address employers' hiring practices nor did it preclude the operation of drug-free businesses. As such, the trial court did not err when it granted the employer's summary judgment motion.

OUTCOME: The judgment was affirmed.


CORE TERMS: marijuana, voter, public policy, patient, initiative, cause of action, termination, qualifying, criminal prosecution, summary judgment, workplace, right of action, hire, authorization, illness, civil remedy, debilitating, terminal, preamble, at-will, Medical Use of Marijuana Act MUMA, initiative process, tort action, wrongful termination, construing, extrinsic, terminate, users, drug test, terminated

LexisNexis® Headnotes Hide Headnotes


Civil Procedure > Summary Judgment > Appellate Review > Standards of Review
Civil Procedure > Summary Judgment > Standards > General Overview
HN1Go to the description of this Headnote. The appellate court reviews a grant of summary judgment de novo, engaging in the same inquiry as the trial court. Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wash. Super. Ct. Civ. R. 56(c).


Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Affirmative Defenses > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
HN2Go to the description of this Headnote. See former Wash. Rev. Code § 69.51A.005 (1999).


Governments > Legislation > Interpretation
HN3Go to the description of this Headnote. A legislative enactment may be the foundation of a right of action. The court assumes that the legislature is aware of the doctrine of implied causes of action and that it would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights.


Governments > Legislation > Interpretation
HN4Go to the description of this Headnote. When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.


Governments > Legislation > Interpretation
HN5Go to the description of this Headnote. A three-part analysis exists to determine if a statute implies a private right of action. In order for an employee to prevail on her claim that a statute creates a private right of action, the court must find: that (1) the employee is within the class for whose "especial" benefit the statute was enacted; (2) the voters intended, explicitly or implicitly, to create a remedy; and (3) implying a remedy is consistent with the underlying purpose of the statute.


Governments > Legislation > Initiative & Referendum
Governments > Legislation > Interpretation
HN6Go to the description of this Headnote. The court interprets voter initiatives according to the general rules of statutory construction. Statutory language must be given its usual and ordinary meaning, regardless of the policy behind the enactment. When interpreting an initiative, the court focuses on the voters' intent and the language of the initiative as the average informed lay voter would read it. The intent behind the language of an initiative only becomes relevant if the language is ambiguous. An ambiguity exists when the language of the enactment is susceptible to more than one reasonable interpretation. Where there is an ambiguity in a voter initiative, the court looks to extrinsic aids, such as statements in the voters' pamphlet, to determine the voters' intent.


Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Affirmative Defenses > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
HN7Go to the description of this Headnote. See former Wash. Rev. Code § 69.51A.040(1).


Governments > Legislation > Initiative & Referendum
Governments > Legislation > Interpretation
HN8Go to the description of this Headnote. When interpreting the language of a voter initiative, the court does not read into the initiative technical and debatable legal distinctions that are not apparent to the average informed lay voter.


Governments > Legislation > Interpretation
HN9Go to the description of this Headnote. When construing a statute, the court must read it in its entirety, not piecemeal, and interprets the various provisions of the statute in light of one another.


Labor & Employment Law > Employment Relationships > At-Will Employment > Exceptions > Public Policy
HN10Go to the description of this Headnote. Under the common law, employers may generally terminate an at-will employee for any reason or for no reason at all. A narrow exception to the employment at-will doctrine prohibits an employer from discharging an employee for a reason that violates public policy. The employee must meet four elements to state a claim for wrongful termination in violation of public policy. The employee must prove that: (1) the existence of a clear public policy (the clarity element); (2) discouraging the conduct in which she engaged would jeopardize the public policy (the jeopardy element); (3) the public policy linked conduct caused her dismissal (the causation element); and (4) the employer cannot offer an overriding justification for her dismissal (the absence of justification element).

SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY

Nature of Action: A worker whose conditional offer of employment was rescinded because she failed a preemployment drug screening test sought reinstatement and damages for wrongful termination in violation of public policy and in violation of the Medical Use of Marijuana Act.

Superior Court: The Superior Court for Kitsap County, No. 07-2-00406-0, Sally F. Olsen, J., on February 1, 2006, entered a summary judgment in favor of the employer.

Court of Appeals: Holding that the employer's rescission of the worker's conditional offer of employment violated neither the Medical Use of Marijuana Act nor public policy, the court affirms the judgment


WA(1)[1] Action â?? Implied Right of Action â?? Statutorily Created Protection â?? In General. A private cause of action may be implied from a legislative enactment that does not explicitly grant such a right.

WA(2)[2] Action â?? Implied Right of Action â?? Statutorily Created Protection â?? Legislature's Knowledge â?? Presumption. It is presumed that the legislature is aware of the doctrine of implied causes of action and that it would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights.

WA(3)[3] Action â?? Implied Right of Action â?? Statutorily Created Protection â?? Need for Remedy. When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, a court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and is needed to ensure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

WA(4)[4] Action â?? Implied Right of Action â?? Statutorily Created Protection â?? Elements. A cause of action may not be implied from a statute unless (1) the plaintiff is within the class of persons for whose special benefit the statute was enacted; (2) legislative intent, explicitly or implicitly, supports the creation of a remedy; and (3) implying a remedy is consistent with the underlying purpose of the statute.

WA(5)[5] Statutes â?? Initiatives â?? Construction â?? Rules of Statutory Construction. Legislation enacted through the initiative process is construed by application of the same rules of construction as apply to statutes.

WA(6)[6] Statutes â?? Initiatives â?? Construction â?? Ordinary Meaning. The language of legislation enacted through the initiative process must be given its usual and ordinary meaning, regardless of the policy behind the enactment.

WA(7)[7] Statutes â?? Initiatives â?? Construction â?? Intent of Electorate â?? Average Voter â?? In General. In construing the meaning of legislation enacted through the initiative process, a court focuses on the voters' intent and the language of the enactment as the average informed lay voter would read it.

WA(8)[8] Statutes â?? Initiatives â?? Construction â?? Intent of Electorate â?? Unambiguous Language. The intent underlying the language of legislation enacted through the initiative process becomes relevant only if the language is ambiguous. An ambiguity does not exist unless the language of the enactment is susceptible to more than one reasonable interpretation.

WA(9)[9] Statutes â?? Initiatives â?? Construction â?? Intent of Electorate â?? Extrinsic Sources â?? Voters Pamphlet. A court will consider extrinsic sources of intent, such as the voters pamphlet, to determine the scope and meaning of legislation enacted through the initiative process only if the language of the initiative is ambiguous.

WA(10)[10] Statutes â?? Initiatives â?? Construction â?? Intent of Electorate â?? Average Voter â?? Technical Legal Distinctions. In construing the meaning of legislation enacted through the initiative process, a court will not read into the initiative technical and debatable legal distinctions that are not apparent to the average informed lay voter.

WA(11)[11] Statutes â?? Construction â?? Considered as a Whole â?? In General. In construing a statute, a court must read the statute in its entirety, not piecemeal, and interpret the various provisions of the statute in light of one another.

WA(12)[12] Employment â?? Controlled Substances â?? Drug Testing ? Termination of Employment â?? Medical Use of Marijuana Act â?? Implied Cause of Action â?? Validity. The Medical Use of Marijuana Act (ch. 69.51A RCW) does not create an implied cause of action against employers who terminate, or fail to hire, a person based on his or her use of medical marijuana outside of the workplace in accordance with the provisions of the act. The sole purpose of the act is to provide an affirmative defense to criminal prosecution for qualifying users or providers of medical marijuana.

WA(13)[13] Employment â?? Termination â?? At-Will Employee â?? In General. Under the common law, employers may generally discharge at-will employees for any reason or for no reason at all.

WA(14)[14] Employment â?? Termination â?? Violation of Public Policy â?? In General. The discharge of an at-will employee is not actionable unless the discharge violates a clear mandate of public policy.

WA(15)[15] Employment â?? Termination â?? Violation of Public Policy â?? Elements â?? In General. An action for wrongful discharge in violation of public policy requires the plaintiff to prove (1) the existence of a clear public policy (the clarity element), (2) that discouraging the plaintiff's conduct would jeopardize the public policy (the jeopardy element), (3) that the public-policy-linked conduct caused the plaintiff's dismissal (the causation element), and (4) that the employer cannot offer an overriding justification for the plaintiff's dismissal (the absence of justification element).

WA(16)[16] Employment â?? Termination â?? Violation of Public Policy â?? Clear Public Policy â?? Medical Use of Marijuana. The Medical Use of Marijuana Act (ch. 69.51A RCW) does not express a clear public policy against employers terminating, or failing to hire, a person based on his or her use of medical marijuana outside of the workplace in accordance with the provisions of the act.

WA(17)[17] Employment â?? Termination â?? Violation of Public Policy â?? Right of Action â?? Medical Use of Marijuana. An employer's termination of or refusal to hire a person based on the person's use of medical marijuana outside of the workplace in accordance with the Medical Use of Marijuana Act (ch. 69.51A RCW) is not actionable as a wrongful discharge in violation of public policy.

COUNSEL: Michael C. Subit and Jillian M. Cutler (of Frank Freed Subit & Thomas, LLP), for appellant.

James M. Shore and Molly M. Daily (of Stoel Rives, LLP Stoel Rive,), for respondent.

JUDGES: Authored by Christine Quinn-Brintnall. Concurring: Elaine Houghton, J. Robin Hunt.

OPINION BY: Christine Quinn-Brintnall

OPINION

[*390] [**1056] ¶1 Quinn-Brintnall, J. â?? After TeleTech Customer Care Management, LLC, rescinded the conditional offer of employment [*391] it had made to [**1057] Jane Roe 1 because she failed a preemployment drug screening test, Roe sued TeleTech, alleging wrongful termination. The trial court denied Roe's motion for summary judgment and awarded summary judgment to TeleTech. On appeal, Roe argues, as she did below, that the Washington State Medical Use of Marijuana Act (MUMA), ch. 69.51A RCW, implies a civil cause of action to sue an employer who violates MUMA's provisions. Alternatively, Roe contends that MUMA expresses a public policy favoring medical marijuana use and that TeleTech wrongfully terminated her employment when it violated this [***2] policy. Because MUMA provides only a defense to criminal prosecution for the medical use of marijuana in compliance with its provisions, the trial court did not err when it granted TeleTech's summary judgment motion and we affirm.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 The appellant uses the pseudonym â??Jane Roeâ?� because the medical use of marijuana remains illegal under federal law.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
FACTS
Background Facts

¶2 Roe sought authorization under MUMA to use medical marijuana to treat her migraine headaches. 2 Roe became a patient of Thomas Orvald, MD 3 at The Hemp and Cannabis Foundation (THCF) Medical Clinic in Bellevue, Washington. On June 26, 2006, Roe filled out a â??Pain Inventory Questionnaireâ?� at the THCF clinic and Orvald provided Roe with â??Documentation of Medical Authorization to Possess Marijuana for Medical Purposesâ?� that same day. Clerk's Papers (CP) at 261.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
2 Roe contends that traditional prescription and over-the-counter medications failed to give her relief.3 Dr. Orvald is licensed to practice medicine in Washington.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

¶3 TeleTech describes itself as an â??outsourcing company that provides a full range of front-to back-office outsourced solutions.â?� CP at 216. TeleTech contracts with Sprint Nextel to provide telemarketing and telesales [***3] services out of its [*392] customer service center in Bremerton, Washington. TeleTech has an applicant drug policy that states in part:

TeleTech has a vital interest in ensuring a safe, healthy, and efficient working environment, and in preventing accidents and injuries resulting from the misuse of alcohol or drugs. The unlawful or improper presence or use of drugs or alcohol in the workplace presents a danger to everyone.

. â?¦

All applicants â?¦ to whom TeleTech has given a conditional offer of employment, are required to submit to a pre-employment drug test and must receive a negative result as a condition of employment.

. â?¦

Any applicant who receives a confirmed positive drug test result will be ineligible for employment with the company.

CP at 221-22. Sprint Nextel requires TeleTech to perform applicant drug screenings before assigning any individual to work at the Bremerton facility.

¶4 On October 3, 2006, TeleTech hired Roe to work as a customer service consultant in its Bremerton facility. On that date, TeleTech provided Roe with a copy of its substance abuse policy for job applicants. After learning that she would be required to submit to drug testing, Roe told TeleTech that she uses [***4] medical marijuana at home and that she had medical authorization to do so. Roe offered to provide TeleTech with her medical marijuana authorization, but TeleTech declined.

¶5 On October 5, 2006, Roe took a drug test administered by ChoicePoint Workplace Solutions. On October 10, 2006, Roe began working for TeleTech and TeleTech provided Roe a copy of its substance abuse policy for employees. Roe's drug test results also came back on October 10, 2006. When Roe tested positive for marijuana, Mary Ann Peltier, a ChoicePoint supervisor, wrote Llibertat Ros, a TeleTech talent acquisition specialist, to inquire about TeleTech's medical marijuana policy.

¶6 Ros contacted supervisors at corporate headquarters, who informed Ros that TeleTech [**1058] does not make an exception [*393] to its drug policies for medical marijuana use. On October 18, 2006, TeleTech terminated Roe's employment because of her positive drug screening.
Procedural Facts

¶7 On February 13, 2007, Roe filed this action in the Kitsap County Superior Court. Roe filed an amended complaint on February 26, 2007, seeking reinstatement and damages against TeleTech for wrongful termination in violation of public policy and in violation of MUMA. On March 27, [***5] 2007, TeleTech removed the case to the United States District Court for the Western District of Washington, claiming the amount in controversy exceeded $ 75,000. On June 6, 2007, the federal district court granted Roe's motion to remand the case to the Kitsap County Superior Court.

¶8 On November 16, 2007, the parties submitted cross-motions for summary judgment. The trial court heard oral arguments on December 14, 2007, and, on February 1, 2008, it granted TeleTech's motion for summary judgment.

¶9 On February 27, 2008, Roe filed a notice of appeal to our Supreme Court. Our Supreme Court transferred Roe's appeal to this court on November 5, 2008.

¶10 The issue we must decide in this appeal is whether Washington voters intended MUMA to create employment protections by requiring employers to hire and retain employees who use medical marijuana outside of the workplace and, thus, intended MUMA to prohibit TeleTech from enforcing its drug-free work policy.
ANALYSIS

¶11 Roe asserts that MUMA creates an implied cause of action against employers who terminate, or fail to hire, a person based solely on her use of medical marijuana in accordance with MUMA. Roe alternatively argues that TeleTech terminated her [***6] employment in violation of the public policy favoring the medical use of marijuana expressed [*394] in MUMA. Because MUMA neither implies a private right of action nor expresses a public policy to establish a cause of action for wrongful termination of employment, we affirm the superior court's grant of summary judgment in favor of TeleTech.
Standard of Review

¶12 HN1Go to this Headnote in the case.We review a grant of summary judgment de novo, engaging in the same inquiry as the trial court. Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 206, 11 P.3d 762, 27 P.3d 608 (2000). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Amalgamated Transit, 142 Wn.2d at 206.
Medical Use of Marijuana Act

¶13 In November 1998, the citizens of Washington enacted Initiative Measure No. 692, MUMA. MUMA is codified in chapter 69.51A RCW. Former RCW 69.51A.005 (1999), at issue here, states the purpose and intent of MUMA:

HN2Go to this Headnote in the case.The people of Washington state find that some patients with terminal or debilitating illnesses, under their physician's care, may benefit from the medical use of marijuana. Some of the illnesses for which marijuana appears [***7] to be beneficial include chemotherapy-related nausea and vomiting in cancer patients; [acquired immune deficiency syndrome] wasting syndrome; severe muscle spasms associated with multiple sclerosis and other spasticity disorders; epilepsy; acute or chronic glaucoma; and some forms of intractable pain.

The people find that humanitarian compassion necessitates that the decision to authorize the medical use of marijuana by patients with terminal or debilitating illnesses is a personal, individual decision, based upon their physician's professional medical judgment and discretion.

Therefore, The people of the state of Washington intend that:

Qualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the [*395] medical use of marijuana, shall not be found guilty of a crime under state law for [**1059] their possession and limited use of marijuana;

Persons who act as primary caregivers to such patients shall also not be found guilty of a crime under state law for assisting with the medical use of marijuana; and

Physicians also be excepted from liability and prosecution for the authorization of marijuana use to qualifying patients for whom, in the [***8] physician's professional judgment, medical marijuana may prove beneficial.

Implied Private Right of Action under MUMA

¶14 Roe first argues that the trial court erred when it granted summary judgment in favor of TeleTech because MUMA created a private right of action for a qualifying patient to sue an employer for wrongful termination when based solely on the employee's at-home medical marijuana use in accordance with MUMA. Roe concedes that MUMA does not explicitly create a cause of action but argues that MUMA implies a private cause of action. TeleTech counters that MUMA created an affirmative defense to state criminal prosecution for possessing or manufacturing marijuana only. We agree with TeleTech.

WA(1)[1-3] ¶15 â?? â??It has long been recognized that HN3Go to this Headnote in the case.a legislative enactment may be the foundation of a right of action.â?? â?� Bennett v. Hardy, 113 Wn.2d 912, 919, 784 P.2d 1258 (1990) (quoting McNeal v. Allen, 95 Wn.2d 265, 274, 621 P.2d 1285 (1980) (Brachtenbach, J., dissenting)). We assume that the legislature is aware of the doctrine of implied causes of action and that it would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights. [***9] Bennett, 113 Wn.2d at 919-20.

HN4Go to this Headnote in the case.â??When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the [*396] provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.?

Bennett, 113 Wn.2d at 920 (quoting Restatement (Second) of Torts § 874A (1979)).

WA(4)[4] ¶16 Borrowing from the test used by federal courts, our Supreme Court has fashioned HN5Go to this Headnote in the case.a three-part analysis to determine if a statute implies a private right of action. In order for Roe to prevail on her claim that MUMA created a private right of action, we must find that (1) Roe is within the class for whose â??especialâ?� benefit MUMA was enacted; (2) the voters intended, explicitly or implicitly, to create a remedy; and (3) implying a remedy is consistent with the underlying purpose of MUMA. Bennett, 113 Wn.2d at 920-21. We hold that by enacting MUMA, the voters did not intend, explicitly or implicitly, to create [***10] a civil cause of action and MUMA does not imply a private right of action.

WA(5)[5-9] ¶17 HN6Go to this Headnote in the case.We interpret voter initiatives according to the general rules of statutory construction. City of Spokane v. Taxpayers of City of Spokane, 111 Wn.2d 91, 97, 758 P.2d 480 (1988). Statutory language must be given its usual and ordinary meaning, regardless of the policy behind the enactment. Dep't of Revenue v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973). When interpreting an initiative, we focus on â??the voters' intent and the language of the initiative â??as the average informed lay voter would read it.â?? â?� City of Spokane, 111 Wn.2d at 97 (internal quotation mark omitted) (quoting Estate of Turner v. Dep't of Revenue, 106 Wn.2d 649, 654, 724 P.2d 1013 (1986)). The intent behind the language of an initiative only becomes relevant if the language is ambiguous. City of Spokane, 111 Wn.2d at 98. An ambiguity exists when the language of the enactment is susceptible to more than one reasonable interpretation. State v. Thorne, 129 Wn.2d 736, 763 n.6, 921 P.2d 514 (1996). Where there is an ambiguity in a voter initiative, we look to extrinsic aids, such as statements in the voters' pamphlet, to determine the voters' [**1060] intent. [***11] Amalgamated Transit, 142 Wn.2d at 205-06.

[*397] WA(10)[10-12] ¶18 Roe points to three provisions to support her argument that voters intended to create a civil remedy under MUMA for medical marijuana users. She first argues that MUMA's preamble, codified at former RCW 69.51A.005, demonstrates that Washington voters â??intended the law to do much more than just protect qualifying patients from criminal prosecution.â?� Br. of Appellant at 14. MUMA's preamble expresses the broad purpose of allowing physicians to â??authorize the medical use of marijuana by patients with terminal or debilitating illnesses.â?� Former RCW 69.51A.005. But the preamble also explicitly expresses MUMA's intent that â??[q]ualifying patients â?¦ shall not be found guilty of a crime under state law for their possession and limited use of marijuanaâ?� and that physicians â??be excepted from liability and prosecution for the authorization of marijuana use to qualifying patients.â?� Former RCW 69.51A.005. The average informed lay voter would understand from reading MUMA's preamble that it was intended to address one subjectâ??criminal prosecutions, from a physician's decision to recommend, and a patient's decision to use, marijuana as treatment for a terminal or debilitating [***12] illness. Although employer drug policies may also present an obstacle to a qualified patient's decision to use medical marijuana, the plain language of MUMA's preamble does not demonstrate any intent to address employers' hiring practices, nor does it preclude the operation of drug-free businesses.

¶19 Next, Roe argues that former RCW 69.51A.040(1) implies a civil remedy because it explicitly prohibits the denial of â??any right or privilegeâ?� to qualified patients using medical marijuana in accordance with MUMA. But Roe reads only the second sentence and takes it out of context. In its entirety former RCW 69.51A.040(1) states:

HN7Go to this Headnote in the case.If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or any designated primary caregiver who assists a qualifying patient in the medical use of marijuana, will be deemed to have established an affirmative defense to such [*398] charges by proof of his or her compliance with the requirements provided in this chapter. Any person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized [***13] in any manner, or denied any right or privilege, for such actions.

(Emphasis added.)

¶20 An average lay voter reading this provision in context would not understand it to prohibit private employers from maintaining a drug-free workplace and terminating employees who use medical marijuana. The prohibition against â??penaliz[ing] in any manner, or den[ying] any right or privilegeâ?� follows that provision's earlier limiting reference to those charged with violating a state criminal law relating to marijuanaâ??that is, those charged and subject to criminal prosecution. Former RCW 69.51A.040(1). The average voter would interpret this language as restricting the State from imposing penalties ancillary to criminal prosecution.

¶21 Last, Roe argues that former RCW 69.51A.060(4) (1999)'s statement that â??[n]othing in this chapter requires any accommodation of any medical use of marijuana in any place of employmentâ?� implies that employers must accommodate an employee's offsite use of medical marijuana. But HN8Go to this Headnote in the case.when interpreting the language of a voter initiative, we do not read into the initiative â?? â??technical and debatable legal distinction[s]â?? â?� that are not apparent to the average informed lay voter. City of Spokane, 111 Wn.2d at 97-98 [***14] (alteration in original) (quoting In re Estate of Hitchman, 100 Wn.2d 464, 469, 670 P.2d 655 (1983)). Here, the average informed lay voter would not read this provision as creating a corollary duty for employers to accommodate an employee's medical use of marijuana outside the workplace where MUMA expressly creates no such duty inside the workplace. To the contrary, absent the strained construction Roe urges, the provision implies that MUMA will place no requirements on employers or places of employment. Moreover, it is unlikely that voters intended to create such a [*399] sweeping change to current employment practices, as Roe suggests, through a negative [**1061] implication, when prior statutes imposing duties on private employers have done so only with explicit language. See RCW 49.17.160(1) (â??[n]o person shall discharge or in any manner discriminate againstâ?� employee for filing a complaint under Washington Industrial Safety and Health Act of 1973, ch. 49.17 RCW); RCW 49.44.090(1) (it is â??unfair practiceâ?� for employer to â??refuse to hire or employ â?¦ or to terminate from employmentâ?� individual because she is 40 years of age or older); former RCW 49.60.180(1)-(3) (2006) (it is â??unfair practiceâ?� for any employer to â??refuse to hire,â?� [***15] â??discharge or bar â?¦ from employment,â?� or â??discriminate against â?¦ in compensation or in other terms or conditions of employmentâ?� individuals based on characteristics identified in chapter 49.60 RCW).

¶22 Thus, it is clear from a commonsense reading of MUMA's plain language that the voters did not intend to impose any duty on private employers to accommodate employee use of medical marijuana. HN9Go to this Headnote in the case.When construing a statute, we must read it in its entirety, not piecemeal, and interpret the various provisions of the statute in light of one another. Thorne, 129 Wn.2d at 763. Because MUMA's language is unambiguous and does not support the creation of an implied cause of action, we need not look to extrinsic evidence of the voters' intent. City of Spokane, 111 Wn.2d at 98.
Public Policy

¶23 Next, Roe argues that TeleTech terminated her employment in violation of Washington public policy as expressed in MUMA.

WA(13)[13-15] ¶24 HN10Go to this Headnote in the case.Under the common law, employers may generally terminate an at-will employee for any reason or for no reason at all. Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 935, 913 P.2d 377 (1996). A narrow exception to the employment at-will doctrine prohibits an employer from discharging an employee [***16] for a reason that violates public [*400] policy. Sedlacek v. Hillis, 145 Wn.2d 379, 385, 36 P.3d 1014 (2001). Roe must meet four elements to state a claim for wrongful termination in violation of public policy. Roe must prove that (1) the existence of a clear public policy (the clarity element) (2) discouraging the conduct in which she engaged would jeopardize the public policy (the jeopardy element), (3) the public policy linked conduct caused her dismissal (the causation element), and (4) TeleTech cannot offer an overriding justification for her dismissal (the absence of justification element). See Wahl v. Dash Point Family Dental Clinic, Inc., 144 Wn. App. 34, 41-42, 181 P.3d 864 (2008).

WA(16)[16, 17] ¶25 Largely repeating her earlier interpretation of MUMA, Roe points only to the act itself as expressing a public policy against terminating an employee for the employee's at-home medical use of marijuana. But as we held above, MUMA's policy is to protect qualified patients and their physicians from state criminal prosecution. Thus, Roe cannot establish the clarity element necessary to support her wrongful termination in violation of public policy claim and it fails.

¶26 MUMA provides qualifying medical users [***17] only a defense to criminal prosecution. MUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the act. The trial court's decision to award summary judgment in TeleTech's favor was proper, and we affirm.

Houghton and Hunt, JJ., concur.


Michael J. Killeen, Employment in Washington: A Guide to Employment Laws, Regulations and Practices (4th ed.)

Littler Mendelson, PC, The Washington Employer, 2008-09 ed.

[killerweed420]

If they did a background check I would say they will probably do a drug test too. You might try anomimously calling the HR office and ask if they do drug testing.

[eastbaygordo]

Most companies will post something like "we are a drug free workplace" or some stuff like that to indicate drug testing.

[Nausicaa]

But they requested the background check a couple months ago. Since then I have already submitted my W4 and other required forms. Wouldn't they have had me do the Quest Diagnostics thing or some such before that point? It just seems unlikely to me that they would test during the training week, which many people are traveling from around the country for, and on the same day as they hand out laptops and stuff. Yet still I'm worried. Like, they wouldn't do onsite testing at the offices would they? These are entry level positions at a midsize national firm.

None of the HR stuff mentions a drug test, nor does the company boast anywhere online about the "drug free workplace" nonsense, including job postings.

[jamessr]

That's why I posted this case from Wa. for ya:thumbsup:, sounds familiar to this case. Don't it?

[killerweed420]

But they requested the background check a couple months ago. Since then I have already submitted my W4 and other required forms. Wouldn't they have had me do the Quest Diagnostics thing or some such before that point? It just seems unlikely to me that they would test during the training week, which many people are traveling from around the country for, and on the same day as they hand out laptops and stuff. Yet still I'm worried. Like, they wouldn't do onsite testing at the offices would they? These are entry level positions at a midsize national firm.

None of the HR stuff mentions a drug test, nor does the company boast anywhere online about the "drug free workplace" nonsense, including job postings.

Its better to just be prepared. Act like there is going to be a UA. If they don't, fire one up.