There's been lotsa debate over just-passed marijuana bills. But lost amid talk about THC driving limits that may prevent MMJ patients like William Breathes from driving legally and a provision that treats pot mags like porn is the impact of marijuana retail on employees and employers. Rulings that support the firing of MMJ patients who test positive for drugs (including Joseph Casias, seen here, who used weed to treat an inoperable brain tumor) would seem to give companies the upper hand. But one report suggests they're still worried about rules involving legal cannabis.
The recent Fortune piece "Smoking 'legalized' marijuana can still get you fired" features a case about which we've written a number of times in recent years. It involves paralyzed medical marijuana patient Brandon Coats, who was canned by DISH after failing a drug test even though the company stipulated that he'd never come to work under the influence of cannabis.
Also noted by Fortune is an equally shocking case, this one out of Michigan. In that instance, the aforementioned Joseph Casias was fired by Wal-Mart for using cannabis to treat an inoperable brain tumor at a doctor's recommendation. According to the September 2012 U.S. Court of Appeals ruling in favor of Wal-Mart (read it below in its entirety), Casias was diagnosed with sinus cancer when he was seventeen, and during the five years or so he worked at Wal-Mart, he suffered from pain in his head and neck as a result of the growth. After pain medication failed to help him, his oncologist recommended that he try marijuana, and after going through the process to become a legally registered patient, he discovered that the substance provided him with substantial relief. The ruling's narrative adds that he was careful not to use marijuana on the job or come to work under its influence.
Then, in November 2009, he twisted his knee while pushing a cart, and after he was taken to an emergency room by his Wal-Mart manager, he was given a drug test, which he failed due to marijuana lingering in his system -- an attribute of cannabis that concerns patients when it comes to Colorado's new THC driving limits law. As a result, he was fired.
The American Civil Liberties Union in Michigan backed a lawsuit over the dismissal on Casias's behalf. But each court that's heard the case has ruled against him, including the U.S. Court of Appeals, where a majority agreed with the district court that accepting Casias's argument "could potentially prohibit any Michigan business from issuing any disciplinary action against a qualifying patient who uses marijuana" in accordance with the state's medical marijuana statute.
Still, judgments like those against Coats and Casias aren't the final word on employees, employers and marijuana -- at least according to Fortune. Here's how reporter Anne Fisher characterizes some of the continuing concerns:
With the courts on their side (so far, anyway), you'd think employers would be relieved but, actually, not so much. For one thing, confusion reigns over how legalized medical marijuana squares with the Americans with Disabilities Act, which requires employers to make "reasonable accommodation" for employees' medical problems. Then there's the Family Medical Leave Act, which some observers have interpreted to mean that companies have to give people time off if they're being treated by a physician with any substance that would cause them to fail a mandatory drug test.
Not complicated enough yet? Throw in states like Arizona, which has passed a law that says people who do not hold "safety sensitive" jobs (an airline pilot, for instance) are safeguarded from being fired for using medical marijuana. Then consider that federal contractors, transportation companies, and some other employers are required by federal law to enforce a zero-tolerance drug policy, no matter which states they operate in. Even companies in other industries that choose to adopt more lenient policies (or none at all) can run afoul of federal OSHA workplace-safety rules.
Fisher adds another factor: "some employers' own ambivalence about pot." She quotes Danielle Urban, a partner in the Denver office of employment law firm Fisher & Phillips, as saying, "At a lot of companies where there isn't a real public-safety issue, they just don't do drug testing at all, because they don't want to know, and they don't want to have to fire people over [marijuana]. I've had clients say to me, 'If I got rid of everyone who works for me who smokes weed now and then, I'd have nobody left.'"
Employees who legally use marijuana had better hope this view is shared by their own boss or bosses. Because if it's not, their potential legal options range from uncertain to downright grim.
Look below to see an ACLU video featuring Casias, followed by the court ruling against him.
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More from our Marijuana archive: "Marijuana: Paralyzed MMJ patient plans Supreme Court appeal over DISH sacking."