Choice of Greens- Money or Medicine?

By: Robert Volynsky

With almost a majority of the states (including Washington DC) legalizing medical marijuana[1], there are new, complex, and problematic legal issues arising daily. On one hand, marijuana is a schedule I drug under the Controlled Substances Act, and as such is classified as having a high potential for abuse with no currently accepted medical use.[2] On the other hand, everyday citizens across the country receive physician’s recommendations or approvals to use marijuana for all sorts of debilitating diseases.[3] Although classified as merely a “recommendation” or an “approval,” these pieces of paper scrutinized in a fashion where we viewed their substance over form would show that they are in fact “prescriptions.”[4]

A prescription is “an instruction written by a medical practitioner that authorizes a patient to be provided a medicine or treatment.”[5] This leaves law-abiding citizens at a crossroad – Do they have to choose between their medicine and their job?

State court decisions in prevalent marijuana states like Washington and Colorado, have answered that question with a resounding “yes.”   Just last summer, the high court in Colorado affirmed the appellate court’s decision that an employer could fire its quadriplegic employee for his use of medical marijuana, since medical marijuana was not a “lawful activity” as defined by federal law.[6] In essentially, what can only be classified as an inverse-Erie Doctrine analysis, the Colorado Supreme Court interpreted its own statute using substantive federal law, and refused to offer an analysis under its own state “Medical Marijuana Amendment.”[7]

In 2011, the high court in Washington found that an employer was appropriate in firing its employee for medical marijuana use, despite the employee’s disclosure of this fact (and adequate paperwork) during the hiring process.[8] In siding with the employer, the court noted that it couldn’t have a public policy where it promotes the violation of federal law.[9] Although this court did not seek federal interpretation of its own state statute, it did use the federal government as its scapegoat in not directly deciding the issue based on its own state law.[10]

It would be flawed to argue that the decisions in Colorado and Washington are meritless. A quick skim of any Constitutional Law outline would provide the necessary support to show that federal law preempts state law.[11] However, neither of these courts touched on the validity of their respective state marijuana statutes with regard to preemption.[12]

Almost everyday, the media flaunts Colorado’s economic benefit from marijuana sales[13], which are essentially enabled by its statute[14]– the same statute that directly conflicts with the Controlled Substances Act. Yet, that same statute, when peered through the microscope of federal intent, would show that the federal government has taken active steps in reducing its enforcement priorities with regard to state legalized marijuana offenses.[15] As such, the judicial branch has actually provide negative implications on public policy with these decisions by creating its own form of economic duress in “forcing legitimate (legal and “prescribed”) patients to choose between using the medicine they need and the job they need.”













[3] See generally

[4] See id.



[7] Id.

[8] Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 171 Wash. 2d 736 (2011)

[9] Id.

[10] Id.

[11] Article VI, U.S. Constitution

[12] See supra 6; see supra 8

[13] See




One thought on “Choice of Greens- Money or Medicine?”

  1. Great article Rob, this issue certainly raises interesting questions. As we all know, the law states an individual may not be terminated for lawful activity, and many states have passed legislation making marijuana legal, so, it would seem reasonable for an individual to believe they may use marijuana without having their employment terminated. Unfortunately, marijuana is still illegal at the federal level, leaving us in the conundrum of individuals believing they are safe from termination when in fact they are not. After all, in the eyes of the courts, they are partaking in Illegal activity. This is a very interesting and hot topic at the moment, which cautions employees to be more aware of possible consequences for engaging in legal state action.


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