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Presbyterian’s firing of medical pot user upheld

A state district judge on Thursday upheld the firing of a physician’s assistant by Presbyterian Healthcare Services because the woman, a registered medical marijuana patient, tested positive for marijuana while on the job.

Her attorney said the court’s decision is “on the wrong side of history” and out of step with the new “civil rights movement” that is medical marijuana.

But Presbyterian Healthcare Services spokeswoman Amanda Schoenberg said that under federal law, “Employees and contracted personnel are required to demonstrate that they are drug-free as a condition of working at Presbyterian.”

At the conclusion of an hourlong hearing, 2nd Judicial District Judge Nan Nash granted a summary judgment in favor of Presbyterian. She agreed with defense attorney Robert Conklin’s argument that Presbyterian is a federal contractor that accepts Medicare and Medicaid reimbursements and must comply with the Federal Drug-Free Workplace Act of 1988.

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Consequently, Presbyterian must provide drug-free workplaces as a condition of receiving contracts, grants or other money from federal agencies and departments.

Based upon plaintiff Donna Smith’s positive test for marijuana, Nash said, Presbyterian “had a legitimate and nondiscriminatory reason for terminating her assignment.”

Marijuana remains a Schedule I drug under the U.S. Controlled Substances Act of 1970, which, according to the Drug Enforcement Administration website, means they are among the most dangerous of drugs because of their potential for abuse and dependence, and because they have “no currently accepted medical use.”

Smith filed suit in District Court in June 2014, claiming discriminatory termination, failure to accommodate a serious medical condition in violation of the New Mexico Human Rights Act, and negligent supervision and training of supervisory and managerial staff to ensure compliance with the New Mexico Human Rights Act.

Smith served in the military from 1992 through 1998 and suffers from post-traumatic stress disorder, which was diagnosed in 1997. She had been raped while serving in the military, her attorney, Jason Flores-Williams, told the court.

According to her lawsuit, after she tried a variety of PTSD therapies, a physician in November 2013 prescribed medical marijuana.

On Feb. 17, 2014, Smith began work as a physician’s assistant at Presbyterian’s North Side Urgent Care center on Harper NE. The job placement was made by Advantage Locums, a staffing agency that Presbyterian uses to fill openings for medical-related positions, the complaint said.

On Feb. 21, Smith received a phone call from Presbyterian’s Medical Affairs Office informing her that she tested positive for marijuana. She subsequently transmitted copies of her state-issued medical marijuana card, a doctor’s note and her driver’s license to the office, which informed her within minutes that she was fired, according to the lawsuit.

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Flores-Williams attempted to argue a number of “material issues of fact” before the court, saying they ought to be decided by a jury.

“By allowing someone or having an employee participate in a legal medical marijuana program, that’s not a violation of federal law, and that doesn’t bring us in conflict with the Controlled Substances Act,” he told the court.

Holding up several prescription pill bottles, Flores-Williams said, “The fact that my client can take all these the night before (work), that’s fine with Presbyterian, but if she legally uses marijuana … and is trying to treat her PTSD the best way she can, she gets fired for that.”

After the proceeding, Flores-Williams told the Journal that “the court is on the wrong side of history,” and he called the use of medical marijuana part of “a civil rights movement.”

“Ultimately, this will be rectified in the courts, and someday soon, and we’ll look back on this as an unfortunate moment when our justice system could have been progressive and protected the rights of individuals, but instead chose to play it conservatively,” he said.

Smith also voiced her disappointment. “How can you say it’s against federal law when we have 23 medical programs across the nation and four that are recreational? What’s the point of having a medical program at all if it’s not compassionate?”

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