WalMart finds itself at center of medical marijuana debate

Medical Marijuana shop

Should Wal-Mart have fired an employee for legal marijuana use? Image from Flickr.

Last November, a Michigan Wal-Mart terminated an employee that had failed a routine drug test. Under most circumstances, this would be a fairly routine action – a Society for Human Resource Management 2006 report found that 84% of employers drug test before hiring, and another 58% require testing after workplace accidents. However, the case of Joseph Casias is much more complicated. Casias is a Michigan resident with a medical marijuana card, and he is suing Wal-Mart for what he claims was an illegal termination. In a case that could effect almost every small loan company up to large corporation doing business in 14 US states, the rights of a corporation to determine who they employ is being weighed against the rights of medical marijuana users.

A patchwork of medical marijuana laws

Currently in the United States, there are 14 states that allow, decriminalize, or offer a positive defense to citizens that use marijuana for medical purposes. Federal law, however, officially lists marijuana as a Schedule 1 drug – a drug that has “no accepted medical use and high tendency for abuse.” In October of 2009, as the Washington Post reported, federal prosecutors were instructed to “back away from pursuing cases against medical marijuana patients.” The resulting patchwork of laws, regulations, and legal protections for medical marijuana users such as Joseph Casias has created a difficult situations for employers.

Wal-Mart’s right to drug test

The Drug Free Workplace Act of 1988 was the first federal law that mentioned employer drug testing, though it did not line out how such policies were to be implemented. Each state has its own laws and regulations that cover drug testing on the job. In Michigan specifically, Wal-Mart had informed Joseph Casias that they would be using drug testing, and that marijuana was included on the test. In general, employers do have the right to test employees for drug and alcohol use upon hiring, at random during work, and after any workplace accidents. In general, these employers must apply drug tests evenly across their workforce.

Why Wal-Mart fired Casias for medical marijuana use

When Joseph Casias, a former Associate of the Year at his Wal-Mart, received a knee injury while he was at work, Wal-Mart followed their policies and conducted a drug test. The drug test came back positive, and Casias informed his employers that he was legally using medical marijuana to treat a brain tumor. As CNN reports, Casias was initially told by his Wal-Mart supervisors that because he was using marijuana legally, it would not be a problem. However, in accordance with Wal-Mart’s corporate policies about positive drug tests, Casias was fired. Joseph claims that he never attended work high and never used marijuana on the job. However, urine analysis tests cannot determine the time frame in which a drug was used, only that it was or was not.

The rights of medical marijuana using employees

The difficulty for both corporations and employees comes in marijuana’s “gray market” status. Legal in some states under some conditions, but illegal federally, corporations are allowed to fire employees for marijuana use under federal law. In most states, employers are also given wide latitude in their policies towards positive drug tests. However, medical marijuana advocates point out that it leaves many employees in a very tough situation – told they can use marijuana to treat their medical condition without fearing state law, but also not protected from being terminated from their workplace. With most health insurance also provided through employers, often terminally or chronically ill patients also have to weigh using medical marijuana against losing the insurance they may be extensively using.

An employer’s right to fire employees for medical marijuana

In the 14 states that currently have medical marijuana provisions, the legal implications are still being tested. In 2008, California’s supreme court ruled in the case of Ross v. Ragingwire Telecommunications, Inc (PDF) that employers are well within their rights to fire or not hire employees for using marijuana, even if that employee was doing so legally under state law.

Medical marijuana laws will most likely remain hazy

Given the patchwork of employer laws, medical marijuana laws, and corporate policies such as Wal-Mart’s, the laws about employee use of medical marijuana are likely to remain hazy. Much like regulations on a payday loan company, the laws and court cases will most likely remain an issue for each individual state to sort out.

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