Wal-Mart doesn’t think so. Joseph Casias was fired from Wal-Mart in Battle Creek, Michigan for legally using medical marijuana to deal with the pain caused by sinus cancer and an inoperable brain tumor pressing against his skull. He said he never used it when he was on duty as an associate at a Wal-Mart in and he never went to work high. For the full story click here
The Michigan Medical Marijuana Act states that a person carrying a medical marijuana card cannot be “denied any right or privilege” by a “business or occupational or professional licensing board.”
The problem is that the Act does not require “an employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”
While “ingestion” of marijuana at work is unprotected, a covered employee may claim a right under the Act to “possess” the substance at work, either externally or internally, so long as the employee is not “under the influence” of the drug. The problem is there is no sobriety test for marijuana.
So, what is considered under the influence? Being “under the influence” of marijuana is different for individuals and hard to determine or prove. Unlike substances such as alcohol, an employee will test positive for marijuana if he or she used the drug any time in the previous weeks. Just because marijuana is in an employee’s system does not mean that there has been “ingestion of marijuana in the workplace” or the employee is “working under the influence of marijuana”, as prohibited by the Medical Marijuana Act.
There is no requirement under the Federal Americans with Disabilities Act (“ADA”) for employers to accommodate a disabled employee’s medical marijuana use, since marijuana is considered illegal under Federal law.
The Michigan Persons with Disabilities Civil Rights Act (PDCRA) provides that employers may establish work rules and policies prohibiting the use of alcohol or illegal substances in the workplace.
Since Michigan has now legalized the use of medical marijuana to designated individuals, employers should not be able to prohibit its use in the workplace.
The Act is clear that Michigan law enforcement officials will not punish or prosecute registered individuals for using the drug; so, why should it be any different for employers? This is fertile grounds for a discrimination suit based on the Michigan Medical Marijuana Act’s language that a person carrying a medical marijuana card cannot be “denied any right or privilege” by a “business or occupational or professional licensing board.”
Employers should treat employees who are registered to use medical marijuana the same as employees who are authorized to use prescription medications.
I’d love to hear what your company’s policy on Medical Marijuana is. Please leave your comments below!
And if you have any questions or would like further information regarding Medical Marijuana contact Samantha Moffett at (248) 624 5500 or Samantha@ambroselawgroup.com