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
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
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.
Labels: Joseph Casias, lawyer, medical marijuana, Michigan Medical Marijuana Act, Sixth Circuit Court of Appeals, Wal-Mart