Joseph Casias has been legally using medical marijuana to deal with the gnawing pain caused by sinus cancer and an inoperable brain tumor pressing against his skull. He says he never used it when he was on duty as an associate at a Wal-Mart in Battle Creek, Mich, and he never went to work high.
But one morning he went to work and was fired for it.
“I never thought I would be terminated for this,” said Casias, who worked for the company for five years and was a Wal-Mart associate of the year in 2008. “At first I thought, ‘This wasn’t true. How could this be right?’”
Casias, 29, just couldn’t understand how Wal-Mart or any employer for that matter could fire a worker for using medical marijuana, which was prescribed by his doctor and has been legal in Michigan since 2008. He even has a card sanctioned by the state that says he can legally use the drug.
Fourteen states now have laws on the books legalizing marijuana. But many of the laws, which do protect users against criminal charges, are often unclear when it comes to protections in the workplace.
Michigan is another story. The state’s law includes some legal shields for workers.
“You can’t discriminate against a person if you have a medical marijuana card, and if they use it for medicinal purposes,” said James McCurtis, a spokesman for Michigan’s Department of Community Health that oversees the medical marijuana program.
Drug testing at work
Most large corporations such as Wal-Mart have long-standing policies against drug use, and many screen prospective employees and conduct random drug testing on existing workers.
According to a 2006 report from the Society for Human Resource Management:
- 84 percent of employers do pre-employment drug screening.
- 73 percent do reasonable-suspicion testing.
- 58 percent do post-accident screening.
- 39 percent do random testing.
In the case of Casias, who has been using medical marijuana since last summer, a knee injury on the job prompted Wal-Mart to test him for drug use.
Casias’ managers knew he had been battling sinus cancer and the brain tumor for some time, but he did not tell them he was using marijuana to deal with the pain because traditional painkillers alone weren’t working.
When the test came back positive, a manager at the store at first told him it wasn’t a big deal because he was legally using marijuana. However, when he came in for work the morning of Nov. 24, he was immediately pulled into the store manager’s office and told he was fired. “The manager told me he was sorry and he had no choice. He said he wished he could help me out,” Casias said. “They went and got my personal belongings, and I walked out of the store.”
Wal-Mart spokesman Greg Rossiter called the situation “unfortunate.”
“We are sympathetic to Mr. Casias’ condition,” he said. However, like so many other employers, “we have to consider the overall safety of our customers and associates, including Mr. Casias, when making a difficult decision like this.”
Employment experts said companies across the country, especially those that operate in a number of states with different marijuana laws, face a Catch-22.
“The federal law says the drug is illegal, but the states are telling people they are allowed to smoke,” said Richard Meneghello, an attorney in Portland, Ore., who works for Fisher & Phillips, an employment law firm that represents companies. If they accommodate marijuana use among some employees, he said, and a worker ends up injuring a customer, then they could face charges of negligence because they knew the employee was using the drug.
Most of his clients are choosing not to make such accommodations and are terminating workers. And, he added, the courts are increasingly siding with employers in these matters.
One key case that many labor experts point to as seminal was Ross v. Ragingwire Telecommunications, Inc., in which California’s Supreme Court decided in 2008 that the telecommunications firm was within its legal right to fire Gary Ross, an administrator at the company, even though he was legally using medical marijuana.
In most states, said Carol Gillam, a Los Angeles attorney that represents workers, employers can legally fire employees. Medical marijuana use has been legal in California for more than a decade, she said, “and still employees are not protected.”
California legislators recently tried to pass a bill that would have included such protections, but the governor vetoed it, she said.
Many ill workers may not realize that even though several states have passed laws legalizing medical marijuana, they could easily lose their jobs for using it.
“You have to tell patients who may not know this stuff that it’s great that you can get marijuana as medicine but you’re really in a terrible predicament,” said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws, known as NORML. “If you’re tested in the workplace, or they come to know that you have one of these cards, you can get fired.”
Some marijuana and privacy rights advocates believe Wal-Mart’s firing of Casias may be found to be illegal if contested because Michigan’s law is stronger than most.
“The attorney general can enforce it because the law is quite clear on what is and what is not allowed under the act,” said Dan Korobkin, a lawyer with the ACLU in Michigan. “Wal-Mart is sending a shameful message that people who become ill and have chronic pain have to chose between their health and leaving a job.”
John Sellek, a spokesman for Michigan Attorney General Mike Cox, said in a statement that Casias’ situation is the “first such situation we are aware of.”
“As this is a private employment situation, the person in question would need to seek private legal council to decide if there is an avenue to pursue. The AG's office does not represent individuals in civil cases,” the statement said.
Casias has contacted Michigan's Department of Civil Rights about his situation. While the department does not enforce the medical marijuana law, the agency is planning on investigating the situation to see if Wal-Mart violated Michigan's disabilities protection laws, said Harold Core, a spokesman for the agency.
Drug use or illness?
One thing the Michigan law does not protect is a worker who shows up at work under the influence, legal experts said. And Casias has said he only used marijuana when not at work.
The other issue for employers and employees is whether the decision to fire or not hire a worker has to do with the marijuana or the underlying illness.
If an employee feels they’ve been fired or didn’t get a job because they have a disability covered under the Americans with Disabilities Act, they have more rights under the nation’s labor laws.
But the courts have found that just using medical marijuana is not protected under the ADA, said Jeanne Goldberg, senior atttorney adviser with the Equal Employment Opportunity Commission. “The term ‘individual with a disability’ does not include an individual who is currently engaging in illegal drug use,” she said, adding that the ADA relies on the federal designation of what are illegal drugs, and under federal law pot is still illegal.
Los Angeles attorney Gillam suggested workers protect themselves by disclosing their disability before they’re tested because then employers can’t claim they didn’t know you had a disability once they find out you’re using marijuana for health reasons.
Aside from whether Casias’ firing was legal or not, a key question is whether it is ethical, said Greg Francisco, executive director of the Michigan Medical Marijuana who protested alongside Casias at the Battle Creek store after he was fired. “Wal-Mart wants to portray itself as a proud part of the community, but they will destroy this man.”
Casias hasn’t decided yet whether he will fight his termination in court, but he is worried about his family’s future. This father of two young children, who was making about $27,000 a year and is $10,000 in debt because of his medical bills, sees his job prospects in Michigan — which has nation's highest unemployment rate, at 14.3 percent — as few and far between.
And, he added, any prospective employer will probably test him for drug use before they hire him, and the whole issue could arise yet again.
“My goal was getting better opportunities and moving up, and what better place to do that than Wal-Mart,” he said. “I don’t understand why they let me go. I tried so hard to be a good employee.”