This article has been written by guest author Stacy Hickox, Assistant Professor in the School of Human Resources & Labor Relations at Michigan State University.
Wal-Mart employee Joseph Casias was discharged after testing positive for marijuana. As a registered medical marijuana user for his sinus cancer & brain tumor, Mr. Casias thought that he was protected under Michigan’s Medical Marijuana Act (“MMMA”).[i] Wal-Mart believes he is not, and the federal district court has agreed with them.[ii] The MMMA, which came into effect in December 2008, provides that a qualifying patient “shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau.” Although this wording suggests that an employee should not be discharged or otherwise disciplined based only on their status as a medical marijuana user, the district court that dismissed Casias’ complaint held that the use of the term “business” only further defines “licensing board or bureau.” Thus, the statute provided no protection for discharged medical marijuana users like Casias.
A total of fifteen states now allow use of marijuana for medical purposes without the threat of criminal prosecution.[iii] Thirteen other states have similar bills pending.[iv] Yet few of those states provide specific protection for applicants or employees who test positive on a drug test due to their medical marijuana use, even if they are not impaired on the job. These employees could look to the Americans with Disabilities Act (“ADA”) for protection, if they are using the marijuana for a substantially limiting impairment, but a current medical marijuana user may be excluded from ADA coverage, since medical marijuana is still treated as a Schedule 1 controlled substance under the Controlled Substances Act (“CSA”).
State disability nondiscrimination laws may be a better source of protection for medical marijuana-using employees. Even though illegal drug users are often excluded, most of these statutes do not define illegality in terms of the Controlled Substances Act. Under state law, medical marijuana users may be protected unless an employer can show that their current medical marijuana use prevents him or her from performing essential job duties or poses a direct threat in the workplace.
If a medical marijuana user is covered by a state disability nondiscrimination law, he or she may be entitled to ask for accommodation that includes protection against discipline for testing positive on a drug screen. Accommodation could also include reassignment to another available position, even if the person’s performance in his or her current position could be compromised by their marijuana use. Of course an employer could still show that such an accommodation would impose an undue hardship. In making such an argument, employers should be aware of at least one court that found that a leave of absence rather than discharge of an employee seeking time off for alcoholism treatment did not impose an undue hardship, despite the employer’s argument that her retention would undermine its substance abuse deterrence program.[v]
For now, it is hard to know the scope of the state medical marijuana protections or whether medical marijuana users must be treated as protected under state or federal disability laws. Until these questions are resolved, cautious employers may choose to evaluate the effect of medical marijuana use on a particular employee’s performance, and accommodate employees who use medical marijuana whenever possible.
[i] MCL 333.26424.
[ii] Casias v. Wal-Mart Stores, Inc., Case No. 1:10-CV-781 (Feb. 11, 2011).
[iii] Alaska Stat. §§ 17.37.010, 17.37.030, 17.37.040 (West 2011); Ariz. Rev. Stat. §§ 36-2812-36-2813 (West 2011); Cal Health & Saf. Code § 11362.5 (West 2011); Colo. Const. Art. XVIII, Section 14 (West 2011); Haw. Rev. Stat. §§ 329-121 – 329.125 (West 2011); 22 Me. Rev. Stat. §§ 2383-B, 2426, 2427 (repealed Jan. 1, 2011) (West 2011); Mich. Comp. Laws § 333.26421 (West 2011);Mont. Code Ann. §§ 50-46-102, 50-46-201, 50-46-205, 50-46-206 (West 2011); Nev. Rev. Stat. Ann. §§ 453A.200, 453A.310, 453A.510, 453A.800 (West 2011); N.J. Stat. §§ 24:6I-3, 24:6I-624:6I-824:6I-14 (West 2011); N.M. Stat. Ann. §§ 26-2B-3, 26-2B-4, 26-2B-5 (West 2011); Rev. Code Wash. §§ 69.51A.010, 69.51A.040, 69.51A.060 (West 2011); Ore. Rev. Stat. §§ 475.302-475.346 (West 2011); R.I. Gen. Laws §§ 21-28.6-3, 21-28.6-4, 21-28.6-7, 21-28.6-8 (West 2011); 18 Ver. Stat. Ann. §§ 4472, 4474b, 4474c (West 2011).
[iv] Connecticut HB 5139, 5900, SB 329, 345; Delaware SB 17; Idaho HB 19; Illinois HB 0030; Iowa SB 266; Kansas HB 2330; Maryland HB 291, SB 308; Massachusetts HB 625; Mississippi SB 2672; New Hampshire HB 442; New York SB 2774; Oklahoma SB 573; West Virginia HB 3251; summaries & links to bills available at http://medicalmarijuana.procon.org/view.resource.php?resourceID=002481.
[v] Schmidt v. Safeway, Inc., 864 F. Supp. 991 (D. Ore. 1994).