Recently a Michigan federal court judge dismissed a case brought by a former Wal-Mart employee of five years and associate of the year in 2008, after he was terminated when a drug test was positive for marihuana. (Reported by Larry Gabriel of the Metrotimes). Mr. Casias had previously registered under Michigan's statute to use marihuana in connection with his sinus cancer and a brain tumor (Michigan spells marijuana with an "h" rather than a "j").
Following his termination, Mr. Casias sued Wal-Mart claiming he was wrongfully terminated in violation of an implied right to use marihuana for medicinal purposes during off-duty hours and in violation of public policy as set forth in the Michigan Medical Marihuana statute. The court disagreed and concluded that the statute protects against prosecution or other potential adverse state action but did not create "a new protected employee class" insulated from private sector disciplinary actions. The Casias case is on appeal to the Sixth Circuit.
Does the Americans with Disability Act Allow for an Employee's Use of Medical Marihuana?
Mr. Casias did not challenge his discharge under the Americans with Disabilities Act (ADA) as a failure to accommodate his disability. And an ADA claim would have made for an interesting analysis as to whether a violation of the ADA occurred. Consider the following:
- Certainly under the ADA anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. Further, the ADA does not prevent employers from testing applicants or employees for current illegal drug use, or from making employment decisions based on verifiable results.
- But under state law, Mr. Casias was not using a drug illegally. And while under federal law, marihuana is an illegal schedule 1 drug, the U.S. Department of Justice announced in 2009 that it did not consider state legalized medical marihuana use a crime to be prosecuted. So does this change the analysis? Probably not - a schedule 1 drug is a schedule 1 drug, whether there is enforcement or not.
- But I suspect that Mr. Casias was not fired per se for using a schedule 1 drug. Rather he was fired for having a by-product associated with a schedule 1 drug that showed up in his drug test. As noted in an earlier post, Michigan's highest (pun intended) court in People v. Feezel, (2010) expressly held that (at least certain) by-products are not a schedule 1 drug in the context of operating a motor vehicle. In the Feezel case, the Michigan Supreme Court reversed a criminal defendant's conviction for operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death.
- Notably, the Feezel Court referenced the Medical Marihauna Act and highlighted that without its limitation, "individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired ..." Further, Feezel noted that at the time the issue was considered, no federal courts had concluded that by-products were "a controlled substance."
So returning to the ADA, as a reasonable accommodation, what if Mr. Cassia asked to be exempted from drug test screening for marihuana "by-products" only as opposed to actual marihuana or other illegal substances?
Also, assuming marihuana is not addictive, is the preceding accommodation made more compelling in light of the risks involved with addiction to prescription pain medication? For example, the Washington Post reported a 2010 government substance abuse study found substance abuse treatment admissions involving prescription narcotics increased more than fourfold between 1998 and 2008, from 2.2 to 9.8 percent.
Does Michigan's Persons with Disability Act Allow for an Employee's Use of Medical Marihuana?
Also, how would the result have changed if Mr. Cassias filed suit under Michigan's Persons with Disabilities Civil Rights Act, MCL § 37.1101, which is the state equivalent to the ADA. Under Michigan's Persons with Disability Act, there is no provision defining "reasonable accommodation" and the only limitation on an accommodation is the requirement that the accommodation may not impose an "undue hardship" on the employer.
There is an argument to be made that nothing in the text of Michigan's Persons with Disability Act to support the proposition that a requested accommodation is unreasonable if it involves off-duty conduct by the employee away from the job site that is expressly protected from criminal sanction under state law but is criminal under federal law. Conversely, there is nothing in the text of the statute to support the proposition that an employee's accommodation to use an illegal (under federal law) schedule 1 drug is a reasonable accommodation.
It should be noted that the few decisions outside of Michigan that have addressed the issue of whether an employer must accommodate an employee's use of marihuana for medicinal purposes have sided in favor of the employer. See e.g., Ross v Ragingware Telecommunications, Inc. (California 2008) (Plaintiff did not state a claim under the state's employment discrimination laws based on the employer's refusal to accommodate use of medical marijuana); Johnson v Columbia Falls Aluminum, Co., LLC (Montana 2009) (employer's failure to accommodate use of medical marijuana did not violate Montana's Human Rights Act).
The above issues have simply not been addressed in Michigan: Cassias was the first case to address the interplay of Michigan's medical marihuana statute and the employment relationship, but it did not involve any ADA or Michigan Persons with Disabilities Civil Rights Act claims. Therefore, trying to offer a meaningful discussion and analysis on these issues was probably best summed up by Yogi Berra: "It's tough to make predictions, especially about the future." For all I know, a Judge hearing these legal theories may wonder if I was high in coming up with them in the first place (I wasn't ... really).
If I was a betting man, based on decisions from outside of Michigan addressing the interplay of employment and use of medical marijuana, I think employers have the upper hand. Still, there are a number of issues that employers should continue to monitor. And in the meantime, if you're a certified medical marihuana patient, "smoke 'em if you got 'em" but you may not have a job afterwards.