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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Friday, October 12, 2012

Medical Marijuana Can Get You Fired

Readers of this blog know that we have tracked the medical marijuana issue through the court system over the past 3-years.  Now there is an interesting twist in the on-going debate: can an employer condition your job on being pot-free, even if you have a medical marijuana card?

The answer is "yes", courtesy of the United States Sixth Circuit Court of Appeals in the seminal case of Casias v Wal-Mart Stores, Inc.

In theory, the 2008 enactment of the Michigan Medical Marijuana Act (MMMA) provides a statutory right for patients and their caregivers to cultivate and use medical marijuana.  Unfortunately, the Act is wrought with ambiguous language, resulting in befuddlement on the bench and a potentially misinformed public, many of whom believe, sincerely, that the MMMA provides more protections than it actually does.  

Joseph Casias of Battle Creek, Michigan, lost his job over his medical use of pot.  Casias worked at the local Wal-Mart, earning “Employee-of-the-Year” honors the same year the pot act received electorate endorsement.   

When hired in 2004, Casias passed a mandatory drug test as a prerequisite for employment.   In 2009, however, after injuring himself on-the-job, Mr. Casias took another drug test required by Wal-Mart corporate policy.  This time he failed the test and was fired from his job.
Casias, having been diagnosed with sinus cancer and an inoperable brain tumor since the age of 17, routinely used pain medications for a number of years, as prescribed by his treating oncologist.  When the MMMA was enacted, Casias obtained a valid registry card allowing him to use medical marijuana for treatment of his chronic pain. 

After his failed drug test in December 2009, Joseph showed his registry card to Wal-Mart management, explaining to his supervisor that he never used marijuana before or during work.  Wal-Mart nevertheless fired their “Employee-of-the-Year” for failing the drug test per corporate policy.   

For his part, Casias went straight to a lawyer and sued his former employer in federal court.  The case was dismissed for, “failure to state a claim”; Casias appealed the dismissal to the Sixth Circuit Court of Appeals.

The Sixth Circuit affirmed the dismissal in its September 19, 2012, decision holding that Casias was both out of luck, and out of job.

Many employees recognize that “at will” employment means that a person can be fired for good cause, bad cause, or no cause at all.  Mr. Cassias, however, assumed that the medical pot law afforded him some manner of employment protection, or exception to the company policy, for his pot use.  He badly miscalculated.

The MMMA prohibits “disciplinary action by a business or occupational or professional licensing board or bureau” against a valid, registered cardholder.  The is silent, however, as to whether such protection applies to employment.

Casias, in filing his complaint against Wal-Mart for wrongful discharge in violation of public policy and the MMMA, argued that the term “business” should be interpreted as applying to private businesses, and should include employment. 

The Sixth Circuit disagreed, holding that the word “business” is a descriptive term as applied to the type of “licensing board or bureau.”  The short answer is that the Sixth Circuit does not believe that the Act provides any employment protections for registered patients; at least not as the Act is currently written. 

Of primary concern of the appeals court was that if they agreed with Casias’ interpretation of the Act, then private business would be unable to discipline employees who held valid registry cards; employee could use pot to insulate them from a variety of performance-related deficits.
We do see loads of litigation arising from such an interpretation.  Not to be, however, as the Sixth Circuit’s narrow application of the Act to private business preserves the decision-making actions of private employers, and leaves patients and caregivers to continue twisting in the ambiguous winds of the MMMA.

 The Sixth Circuit did insert a sliver of hope to those who would disagree with this decision, saying that their Casias decision is solely based upon how the MMMA is currently written.  The Act just does not ly address the issue presented in this case.

Perhaps this decision works well to illuminate yet another area where the MMMA requires clarification.  Perhaps the legislature should consider amending the Act to expressly include employment sanctions within its protective scope, as apparently intended by the electorate when approving the pot resolution 4-years ago.  

As with many of the cases that have arisen since the enactment of the medical pot law, the hard truth is that the scope of the protections under the Act are limited; those who find themselves embroiled in these initial “test” cases risk losing their property, employment, and liberty. 

Remember, the MMMA, as it currently stands, provides limited protections against state action, i.e. criminal prosecution.  While it may keep you out of jail, it simply cannot protect your job. 

Therefore, we here at the Law Blogger advise employees to proceed with caution. 

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