The Circuit Court of Hanover County has issued a preliminary injunction against the Hanover County Fire & EMS Department who was seeking to discipline a firefighter for the off-duty use of medically-certified cannabis oil.
The case was brought by Hanover County firefighter David Morath, who holds a valid written practitioner certification under Virginia’s medical cannabis program for the lawful use of cannabis oil.
Hanover County was contemplating discipline against Morath for his off-duty use of the cannabis oil. Morath filed suit seeking relief under the employment protections of Virginia law. The Virginia statute in question is:
- § 40.1-27.4. Discipline, discharge, or discrimination for lawful use of cannabis oil; exceptions.
- A. As used in this section, “cannabis oil” means the same as that term is defined in § 4.1-600.
- B. No employer shall discharge, discipline, or discriminate against an employee for such employee’s lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment of such employee pursuant to Chapter 16 (§ 4.1-1600 et seq.) of Title 4.1. However, nothing in this section shall (i) restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours or (ii) require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding.
- C. Notwithstanding the provisions of subsection B, nothing in this section shall (i) restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours, (ii) require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding, or (iii) require any defense industrial base sector employer or prospective employer, as defined by the U.S. Cybersecurity and Infrastructure Security Agency, to hire or retain any applicant or employee who tests positive for tetrahydrocannabinol (THC) in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.
Hanover County Circuit Court granted Morath’s request for a preliminary injunction. The court held that:
- Plaintiff has asserted a legally viable claim based on credible facts and Plaintiff has demonstrated that the underlying claim will more likely than not succeed on the merits.
- Plaintiff is not prohibited from seeking relief by the Last Chance Agreement he entered into with Defendant.
- Plaintiff is likely to succeed on his claim that Virginia law protects his lawful off duty use of cannabis oil (as defined by statute) pursuant to a valid written certification, and that Defendant may not discipline him for such lawful use.
- The harm to Plaintiff without the preliminary injunction compared with the harm to Defendant with the preliminary injunction-favors granting the preliminary injunction.
- Absent injunctive relief, Plaintiff faces irreparable harm, including but not limited to, the threat of discipline or termination tied to his medically authorized treatment and Defendant’s failure to accommodate his due-process right to use medicine.
- Defendant does not face the threat of irreparable harm.
- Oil-Only Limitation. Plaintiffs medically authorized use is restricted to cannabis oil within the meaning of Virginia law.
- No On-Duty Use; No Impairment at Work. Plaintiff shall not use cannabis oil while on duty and shall not be under the influence while working or in any manner that affects his ability to perform safely or that affects the safety of others at work.
- Defendant is ENJOINED from terminating, disciplining, or otherwise discriminating against Plaintiff for his lawful off-duty use of cannabis oil under a valid written certification, so long as Plaintiff complies with the terms of this Order, is not impaired at work, or does not affect the safety of himself or others.
The injunction specifically enjoins Hanover County from disciplining or terminating Morath for his off-duty use of medically-certified cannabis oil, so long as the use does not impair performance or safety. The court rejected the County’s argument that its obligations under federal funding or policy imperatives justified the discipline. It held such considerations did not override the state law protections…