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Reefer Madness

SMG prof: workers can be fired for using legal medical marijuana

| From BU Today | By Rich Barlow

Kabrina Chang has researched employers who fire workers for using medicinal marijuana. Photo by Cydney Scott

If you have a serious medical ailment and if your doctor recommends medicinal marijuana to alleviate pain or other symptoms and your state allows medical marijuana use, the law has two words for you:

You’re fired.

Employers nationally are canning medicinal pot users who flunk workplace drug tests, and courts uniformly are approving the dismissals, says Kabrina Chang. This may seem more proof of Mr. Bumble’s observation in Oliver Twist—“The law is a ass.” But the School of Management assistant professor, although personally displeased with this state of affairs, attributes legitimate legal concerns to employers, for whom federal law, which bans medical marijuana, trumps state statutes (17 states and the District of Columbia allow medicinal marijuana; Massachusetts as yet does not). Those state statutes consequently may not shield a company from liability if someone sues because an impaired worker injures herself or others, says Chang, a lawyer who teaches business and employment law.

And so firms fire the likes of Joseph Casias, a Wal-Mart “Associate of the Month” in Michigan, who was dismissed in 2009, even though his doctor had suggested pot for his sinus cancer and inoperable brain tumor and Casias had registered with the state under its medical marijuana law. As with all the half dozen cases Chang cites in a paper that recently won the “best paper” award at the Southeastern Academy of Legal Studies in Business conference, Casias unsuccessfully sued his former employer. The paper will be published in the academy’s journal.

Still, she says, “the majority of Americans have made it clear that they support medical marijuana under at least some circumstances, so it just sort of defies logic that this is actually the plight of people who follow the law” in their state. Doctors, meanwhile, are not penalized for recommending pot because it’s only a recommendation, Chang says; states don’t permit them to formally prescribe it.

As many as half a million Americans use medical marijuana, she says.

Bostonia recently spoke with Chang about the nation’s medical marijuana laws and what protection they do—and do not—afford.

Bostonia: Could you answer your own question in the paper: “How will these medical marijuana laws impact the employment relationship?”

Chang: For medical marijuana, the common sentiment was, if it’s legal in my state, how could I be fired for it? The collision is, the federal law still says it’s a controlled substance, and federal law will always beat out state law. Employers with drug-free workplace policies ask, “If medical marijuana is legal in my state, what does that do to my rules?” And it really doesn’t do anything.

The other area where you would think employees have traction is disability law. Joseph Casias says, “I’ve got this disability, cancer, and I need medical marijuana to alleviate my symptoms.” That seems like a pretty effective argument, but it’s not. Because medical marijuana is illegal under federal law, disability laws says allowing somebody to break the law is not a reasonable accommodation.

What legitimate concerns do employers have?

I get Wal-Mart’s point. It’s a huge company. If they let this guy waive the drug test, which is what he’s asking, I can see that’s a really dangerous proposition. Who else do you have to waive it for?

Wal-Mart could say, “If you don’t have a doctor’s order, this is purely recreational use, and we don’t approve.”

I can see employers worried about liability: “What if that person gets injured at work? What if that person injures someone else at work, and it becomes known that we knew that he was smoking pot and waived the drug test?” If you think about Wal-Mart in particular, there’s some physical activity there, stocking shelves and things like that, where if there were an injury, it would open up a Pandora’s box.

I’m not saying that point outweighs the Mr. Casiases of the world. But some courts have mentioned that marijuana is marijuana; calling it medical doesn’t change the fact that people get stoned. All of the plaintiffs in the cases I mention say that they don’t come to work impaired. That doesn’t mean that everyone’s going to be as conscientious. But some of the dissenting opinions in these cases point out that there’s no practical difference between impairment from medical marijuana and impairment from Vicodin or Oxycodone or other controlled substances for which there is an approved medical use.

Is there any research showing that we are losing business because employees are coming to work impaired by marijuana?

I haven’t come across numbers to indicate who comes to work stoned because they use medical marijuana. There are general numbers about lost productivity because of drug or alcohol abuse.

Practically speaking, are we going to need Congress to change the federal statutes and legalize medicinal marijuana?

Yes. That’s the cleanest solution. I’m not hopeful. There could be a way that it could find its way to the U.S. Supreme Court; I don’t think it will. We don’t have the public outcry.

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