Oct 25

Semper High: Why the Need for Weed Can Cost a Few Good Men Their Civilian Jobs

Tags: , , , , , , , , , , , ,
Smoking pot can lead to an administrative separation and an OTH discharge.

Smoking pot can lead to an administrative separation and an OTH discharge.

California is home to a few good men. Many are Marine Reservists who will return to their civilian jobs after they complete their training or duty. Fortunately, the Uniformed Services Employment and Reemployment Rights Act (USERRA) gives a service member the right to reemployment in his former civilian job if: (1) he takes a leave of absence “by reason of service in the uniformed services”; (2) he gives his employer advance notice of such service; (3) the cumulative length of his absence and of all previous absences from his employment with that employer by reason of service in the uniformed services does not exceed five years; and (4) he timely reports back to work.1

California is also home to a few good marijuana dispensaries. That’s because state law now allows any medical patient to possess (and cultivate) marijuana with a doctor’s approval.2 The punishment for possession of one ounce or less of non-medical marijuana (other than concentrated cannabis) is now no harsher than the punishment for throwing a Frisbee on the beach over a lifeguard’s objection: a maximum $100 fine.3 The military, however, continues to see things differently. The possession or use of marijuana by a service member can lead to a mandatory administrative separation and an “other than honorable” (OTH) discharge. That, in turn, can strip a service member of his right to reemployment, causing his civilian job to go up in smoke.

Collateral Damage: USERRA Says Smoking Pot Can Make a Civilian Job Go up in Smoke

If you get an OTH discharge, you'll lose your right to reemployment under USERRA.

If you get an OTH discharge, you’ll lose your right to reemployment under USERRA.

Even if a Marine Reservist receives the Medal of Honor, his decision to later smoke grass out in the bush can swiftly end his military career. Under Section 6210 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), “commanders shall process Marines for administrative separation for illegal, wrongful, or improper use, possession, sale, transfer, distribution, or introduction on a military installation of…marijuana…” Thus, a discharge for using or possessing any amount of marijuana, even medical marijuana, is a foregone conclusion. The only question is whether the Command will characterize a discharge as general (under honorable conditions) or OTH.

The issuance of an OTH discharge can have can cause extensive collateral damage to a Marine Reservist’s civilian career – the reason being that an OTH discharge strips any military leave of absence of protection under USERRA. His civilian employer will then be free to treat the leave of absence as if it never happened – like the service member went “AWOL” from his civilian job. Fortunately, self-referral to a Department of Defense (DOD) rehab program can help a service member avoid an OTH characterization (though not a separation from service). The voluntary submission of a service member to a DOD rehab program, as well as any voluntary disclosures he makes as part of his participation in such a program, are inadmissible to determine the character of his discharge.

“High” Crimes: Discrimination Against a Former Pothead Might Be Illegal

If a service member's weed problem is all in the "past," he has rights.

If a service member’s weed problem is all in the “past,” he has rights.

Some legal authority suggests that a Marine Reservist who receives an OTH discharge for being “semper high” might still have a right to reemployment. California’s Fair Employment & Housing Act (FEHA) prohibits an employer with at least five regular employees from refusing to hire a job applicant or discriminating against or firing an employee based on a disability. Similarly, FEHA prohibits such an employer from asking general pre-offer questions that are likely to elicit information about a disability.4 The reason all that matters: FEHA deems past drug addiction a disability,5) and assuming one can become “addicted” to pot, FEHA might prohibit an employer from discriminating against a service member for being a former pothead.6

Just how long ago drug addiction must be before FEHA says it’s in the “past” is unclear. The federal regulations implementing the Americans With Disabilities Act (ADA) are the only authority on that point. Under the ADA regulations, the “current illegal use of drugs” is the “illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem.”7 That more or less means that drug use is current if it’s current – not exactly helpful. In short, nobody knows for sure whether FEHA protects someone from adverse employment action for smoking a joint a month ago, six months ago, or even a year ago.

Time to just say no.

  1. 38 U.S.C §4312(a). 

  2. H&S Code §11362.5. 

  3. H&S Code §11357(b); Veh. Code §23222; LACMC §§17.12.430, 17.12.150; Gov. Code §25132(a). 

  4. 2 CCR §11070(b)(2). 

  5. 2 CCR §11071(d)(2)(B 

  6. Id

  7. 28 CFR §35.104. 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.