Katie Rucke
As medical marijuana legislation becomes more common in the United States, an issue facing just about every medical marijuana patient and employer is whether employers can fire employees who test positive for marijuana but have a prescription.
According to the head Americans with Disabilities Act (ADA) Equal Employment Opportunity Commission (EEOC) lawyer, in short, the answer is yes.
“Because federal – as opposed to state – law does not recognize the medical use of marijuana, current use of marijuana, even if permitted under state law and prescribed by a physician, would still be considered illegal drug use under federal law and an employer would be free to fire an employee for that reason.”
So in sum, every employee with a medical marijuana prescription is not protected under the ADA, because the “ADA plainly states that current use of illegal drugs cannot be considered a disability.”
It’s loopholes in the law like this that led to a Michigan appeals court to uphold a decision last year by a federal judge that Wal-Mart had every right to fire an employee who used medical marijuana, and ruled that doing so would not be a violation of the state’s medical marijuana laws.
Fired by Wal-Mart
Joseph Casias was an inventory control manager at a Wal-Mart in Michigan until he was fired in 2009 for testing positive for marijuana.
According to a report by the Associated Press from 2010, Casias had been prescribed medical marijuana to deal with and treat symptoms for an inoperable brain tumor and cancer. Married and father of two children, Casias said he had been in remission for several years but his medical condition caused him so much pain it interfered with his ability to speak.
He said marijuana helped “tremendously” with his pain, and said he “only use[d] it to stop the pain. To make me feel more comfortable and active as a person.”
So after medical marijuana was legalized in Michigan in 2008, Casias’ oncologist prescribed marijuana. That same year Casias was named Associate of the Year at the Wal-Mart store he worked at in Battle Creek, Mich.
Casias said he went to work every day during his five years at Wal-Mart. “I gave them everything,” he said. “One hundred and ten percent every day. Anything they asked me to do, I did. More than they asked me to do. Twelve to 14 hours a day.”
Then in November 2009, Casias sprained his knee while at work. As per Wal-Mart’s company policy, a routine drug screening followed the incident, as the company does with all workplaces injuries. Casias tested positive for having marijuana in his system. He showed his managers his Michigan medical marijuana card, but was still fired.
“I was told they do not accept or honor my medical marijuana card,” Casias said, adding that he never smoked marijuana before going to work.
Pain relief or employment: take your choice
“No patient should be forced to choose between adequate pain relief and gainful employment, and no employer should be allowed to intrude upon private medical choices made by employees in consultation with their doctors,” said Scott Michelman, a staff attorney with the American Civil Liberties Union (ACLU), in regard to Casias’ case. The ACLU helped represent Casias in his lawsuit against Wal-Mart.
“For some people, working at Wal-Mart is just a job, but for me, it was a way of life,” Casias said in a statement released in 2010. “I came to Wal-Mart for a better opportunity for my family, and I worked hard and proved myself. I just want the opportunity to continue my work.”
But Wal-Mart said they couldn’t allow Casias to use marijuana even if he was prescribed the drug by a doctor because use of marijuana “conflicts with its safety policy in stores.”
“In states such as Michigan, where prescriptions for marijuana can be obtained, an employer can still enforce a policy that requires termination of employment following a positive drug screen,” said Wal-Mart spokesman Greg Rossiter.
“The doctor prescribed treatment was not the relevant issue. The issue is about the ability of our associates to do their jobs safely,” the company said in 2010.
According to the Associated Press, the Michigan federal appeals court ruled that the “state medical marijuana law provides some immunity in criminal cases, but it doesn’t offer protection to people in the workplace.”
The only time a medical marijuana patient would be protected under ADA law is if an employer fired a worker for using marijuana to help with cancer pain in order to avoid health insurance premiums from going up because of expensive cancer treatments, or if an employer fires a medical marijuana patient, but takes no action against other employees who are recreational marijuana users.
But “as long as the employer treats all marijuana users the same, the fact that one was using it for a disability would not protect her under the ADA from being fired, as he or she would be considered a current user of illegal drugs under federal law,” said the EEOC attorney.
“I never came to work under the influence, ever,” Casias said. “I don’t think it’s fair. Because I have a medical condition I can’t work and provide for my family?”
Employment law fails to keep up with medical marijuana laws
As laws regarding marijuana use become increasingly common in the U.S., it’s likely lawsuits like Casias’ will become more commonplace. In February this year, a medical marijuana patient sued her former employer for not rehiring her after she told the company that she uses marijuana for medical reasons.
Represented by the ACLU of Maine and attorney Walter McKee, Brittany Thomas’ case highlighted the legal conflict that has arisen in states where marijuana is legal while federal laws prohibit its use.
McKee said that since an employer would never discipline an employee who tested positive for an FDA-approved drug, medical marijuana users should not be treated differently.
“No patient should be forced to choose between the pain relief she needs to live a normal life and the employment she needs to support her family,” said Zachary Heiden, legal director for the ACLU of Maine. “And no employer should be forcing itself into the middle of a decision best made by a patient and her doctor.”
Thomas, 24, was prescribed medical marijuana to help her with severe back pain caused by arthritis, bulging discs, an annular tear and a pinched nerve.
“Using medical marijuana would never have gotten in the way of me doing my job, because I never would have taken it while on duty,” Thomas said. “I choose to use medical marijuana to control my pain because it doesn’t have any of the side effects of stronger pain medication, like addiction. The incredible thing is: If I was using a stronger drug [like narcotics], I could have kept my job.”