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Can You Be (Legally) Fired For Using (Legally) Prescribed Marijuana?

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Can You Be (Legally) Fired For Using (Legally) Prescribed Marijuana?






August 3, 2010, 5:55 PM ET


Can You Be (Legally) Fired For Using (Legally) Prescribed Marijuana?


Here’s an interesting dilemma. You’re a human-resources manager at a company in a state that has a law allowing the use of medical marijuana in certain situations. You find out that one of your employees is using marijuana to treat a chronic medical problem, in violation of your company’s drug policy.

What should you do?

A story out on Tuesday by WSJ reporter Stephanie Simon suggests the following: consult your lawyer (but don’t be surprised if it takes a while for that lawyer to figure out the answer).

On the one hand, reports Simon, employers can fire, or refuse to hire, employees for using marijuana without running afoul of the Americans with Disabilities Act or any other federal anti-discrimination statute.

But state law is a bit less settled. The state Supreme Courts in Oregon, California and Montana and the Washington Court of Appeals have all ruled that employers have a right to fire medical-marijuana patients for using the drug. The medical-marijuana laws in Rhode Island and Maine state that most employers may not penalize individuals solely because of their status as marijuana patients.

Simon reports that many employers are closely watching a suit against Wal-Mart in Michigan in which an employee who used medical marijuana was fired by the retailer after a positive drug test on the job.

In Michigan, the law states that registered patients shall not be “denied any right or privilege” or face disciplinary action at work because they use pot. The only exception: Employers do have the right to terminate workers who use marijuana on site or come to work high.

Joseph Casias, who says he uses medical marijuana to ease pain from an inoperable brain tumor, sued Wal-Mart in a state court in June, saying the retailer was wrong to fire him from his job as an inventory manager in Battle Creek, Mich., after he tested positive for marijuana.

Casias, who is represented by the ACLU, says he uses cannabis on his oncologist’s advice and in compliance with Michigan law. The 30-year-old father of two says he takes the drug at night and has never come to work high. But last November, he failed a drug test that was administered as a matter of company policy after he twisted his knee on the job.

A Wal-Mart spokesman called the case “unfortunate” and the decision to fire Casias “difficult.” But, he said: “As more states allow this treatment, employers are left without any guidelines except the federal standard. In these cases, until further guidance is available, we will always default to what we believe is the safest environment for our associates and customers.”

Copyright 2008 Dow Jones & Company, Inc. All Rights Reserved

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

800-656-3557 (Toll Free)

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Email: michael@komornlaw.com

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PLANET GREENTREES Call-in Number: (347) 326-9626

Call-in Number: (347) 326-9626

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