When cannabis is legalized for medicinal purposes, that means it’s legal to use if you have a doctor’s authorization, right? Well, yes. But can you get fired anyway for using it, even if you use medical marijuana only at home? Unfortunately, in most states, yes.
Take Michigan as an example. According to the Lansing State Journal, the die was cast back in 2009 when cancer patient Joseph Casias was fired from his position at Walmart because he failed a drug test. Casias was a legally authorized medical marijuana patient under Michigan law, using cannabis to treat sinus and brain cancer.
The American Civil Liberties Union sued Casias’ employer on his behalf, maintaining it violated the law for Walmart to fire him for doing something that was legal. But a U.S. District Court judge and the Sixth Circuit Court of Appeals both sided with Casias’ employer, upholding his firing.
“Essentially, it said that the language in the Medical Marijuana Act does not say that a business can’t terminate somebody for their use, or even being in the system,” said Capital-area attorney Matthew Heos.
According to Heos, it’s largely a matter of whether employers have permissive views towards medical marijuana, reports WNEM.
‘At-Will’ = you can get fired for no reason.
Michigan, like many other states, is an “at-will” employment state, meaning you can get fired for any reason or no reason at all because employers don’t need to establish “just cause” to dismiss you. While employees can’t actually be forced to take drug tests, they can be fired for refusing to take one.
The medical marijuana law in Michigan supposedly protects patients from being punished for their cannabis use. That includes “disciplinary action by a business or occupational or professional licensing board or bureau.”
But the courts somehow decided that doesn’t protect patients from being fired. In what can only be described as a rather odd decision, the courts decided that “business” is another word for licensing board of bureau. That means all businesses wouldn’t be subject to the employee protections.
“Based on a plain reading of the statute, the term ‘business’ is not a stand-alone term as Plaintiff alleges, but rather the word ‘business’ describes or qualifies the type of ‘licensing board or bureau,’” Judge Eric Clay wrote in his decision on Casias’ case.
A 2014 case seemed to contract the Casias case from five years earlier. The Michigan Court of Appeals ruled that the state could not deny unemployment benefits for three people who were fired for using medicinal cannabis. The court didn’t, however, say that the firings themselves were unjustified.
Nine states offer medical marijuana patient protections.
Nine medical marijuana states — Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Nevada, New York and Rhode Island, to varying degrees, restrict employers from firing patients unless they are shown actually to be impaired on the job, reports Quartz. If you have a medical cannabis authorization in those states, your employer cannot fire you for using medical marijuana while off duty if it does not affect your work performance.
When Cristina Barbuto, a Crohn’s disease patient in Massachusetts, was fired after showing up positive for marijuana on a drug test, she sued for discrimination based on her disability. She had already told the company, Advantage Sales, and Marketing, that she was a medical cannabis patient with a doctor’s authorization.
A Massachusetts court said Barbuto’s firing was unlawful because she was qualified to do the job with a reasonable accommodation: a waiver of ASM’s drug policy. Her outcome was positive because the Massachusetts Medical Marijuana Act protects patients diagnosed with a “debilitating medical condition” from arrest, prosecution, or penalty.
Massachusetts law prohibits “on-site medical use of marijuana,” but the court ruled ASM was not at risk for Barbuto’s off-duty use, as they aren’t aiding and abetting her possession simply by not firing her for off-duty use.
But courts in California, Colorado, Michigan, Oregon, and Washington state have specifically upheld an employer’s right to fire workers who test positive for cannabis, regardless of valid medical authorizations and only using cannabis while off duty.
In coming to this decision, many state courts have unfortunately relied on the fact that marijuana is still illegal under federal law.
The Colorado Supreme Court upheld the firing of a quadriplegic man due to off-duty medical cannabis use, despite his outstanding work record.
Colorado’s medical marijuana law doesn’t provide employee protections, but the worker argued he was protected under the state’s off-duty conduct law.
Colorado’s off-duty conduct law prevents employers from disciplining or firing employees for engaging in legal activities outside of work. The employee argued his use of medicinal cannabis was legal and therefore protected. The court disagreed, ruling that medical marijuana use isn’t a protected, lawful activity because it is still federally illegal.
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