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

Medicinal marijuana law, Kabrina Chang, Boston University School of Management

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.

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

BU Today: 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.

Rich Barlow

Rich Barlow can be reached at barlowr@bu.edu.

22 Comments on Reefer Madness

  • Carlitos Corazon on 02.08.2012 at 7:50 am

    Somebody drank the kool-aid… The Federal Government designates marijuana as a drug with a high potential for abuse and no medical application or proven therapeutic value.

    Medical cannabis does have established effects in the treatment of nausea. Thus, the only marijuana-derivative currently approved at the Federal level for medical use is Marinol, a synthetic form of THC, the active component of marijuana. It was developed to reduce nausea in chemotherapy patients, and can be taken orally (in capsule form).

    Advocates of medicinal marijuana state that it can lower intraocular pressure (IOP) in people with glaucoma. However, the number of significant negative side effects generated by long-term marijuana use make marijuana a poor choice. To date, no studies have shown that marijuana — or any of its approximately 400 chemical components — can safely and effectively lower intraocular pressure better than the variety of legally-distributed drugs currently on the market.

    Poponents of legalizing marijuana for recreational use have generated a (marijuana) smoke screen to hide their actual agenda, and have ignored the alternatives. Simply put, medical marijuana use is comparable to the use of alcohol to dull sensation for surgery. Yet, since the 19th century, we have had effective anesthesia. And today, there are legitimate drugs to treat both nausea and IOP as well. Medical heroin anyone?

    • Rupert Manlove on 02.08.2012 at 11:36 am

      …And the Federal Government also approved Pizza as a vegetable for school lunches, so I tend to err on the side of caution when it comes to getting my medical/health advice from capital hill ;-)

      I understand and agree that there’s an agenda for the recreational use, but seriously, we’re going to tell folks with CANCER that they can’t smoke because it’s bad for their health?

    • Edric on 02.08.2012 at 2:46 pm

      “the number of significant negative side effects generated by long-term marijuana use make marijuana a poor choice.”

      There aren’t that many long-term side effects if at all, let alone negative ones. Also its excessive and manipulative rhetoric to compare heroin to marijuana. Equating medical marijuana with using alcohol as a pain-killer is just as misguided. You cannot overdose on marijuana, but I can die from alcohol-poisoning. Long-term side effects of regular alcohol consumption include but are not limited to liver disease, high blood pressure, heart or respiratory failure, and cancer. Like any other medical drug, OTC or otherwise, marijuana becomes addictive over the course of long-term use and abuse, quite similar to the way Oxycodone and Vicodin cultivate addictive dependence.

      I cannot speak to the medical advantages of medical marijuana because I am not a doctor. But if a medical professional suggests medical marijuana to a cancer patient, they should feel free and not discouraged from exploring a low-risk option like marijuana that works.

      Instead of smoke-screening YOUR prejudicial bias against marijuana with false, ambiguous factoids, you should keep your own hyperbolic language in check and offer a fair analysis of what you criticize. Heroin=Marijuana=Drinking-on-the-operating-table? Not cool.

      • Carlitos Corazon on 02.08.2012 at 4:59 pm

        … spoken like a marijuana user. Exactly whose post did you read? Apparently not mine as your response was a near non-sequiter. But, I agree with you about alcohol, and I don’t think it should be legal either. I am suspicious of the motivation of those that want to promote medical marijuana. It appears to be a first step towards broad legalization. Just what we need, another legal recreational drug with all the negative consequences that will bring. What are you thinking?

        • Dan Lee on 02.08.2012 at 10:01 pm

          Did you realize just say alcohol should be legal? Have you never taken a History course?

          • Carlitos Corazon on 02.09.2012 at 6:33 am

            Dan, If I understood your questions correctly – and it was difficult – yes, I said that I think that alcohol should be illegal. And yes, I’ve taken a host of history courses (and even taught a few).

        • Lisa on 09.17.2012 at 11:53 pm

          Oh and p.s. there seems to be countless poor choices that we as humans make. I’m not sure exactly who qualifies who to decide what is a poor choice for others, but I really wish these people who have decided they are the ones would focus on something more important and stop forcing their ideals on others. Especially over something this unimportant.

    • Lisa on 09.17.2012 at 11:41 pm

      It is absolutley ridiculous a person can’t get up, go to work and come home and sit at home after a long day, or relax and enjoy their weekend with a bowl if they so choose. It’s ok to go home and drink and get up and go to work, but a person who is smoking marijuanna can’t have the same respect because marijuanna stays in the bloodstream so long. I think employers need to be more concerned with people who smoke during or before work, and I think marijuanna should be taken out of the screening process entirely, unless it can be used to detect those who are under. The influence while at work only. and what about all the people in the united states who get up every morning ingesting heavy pain pills before and while working? Other than the fact it’s more acceptable and they have a prescription I’d really like to hear a solid reason why this is acceptable but medical marijuanna is not. point is, What people do on their off time is their own business, and as long as they are fulfilling their job duties It apears to me that its everyone else that has the problem.Government does a great job regulating alcohol, prescription drugs and tobacco, what seems to be the problem with regulating marijuanna? And the old saying that marijuanna is a gateway drug is pure fable and only hypothetical. In reality it’s alcohol. That’s the beginner. Seriously folks, take marijuanna out of the drug screening process. What a joke.

  • William Clark on 02.08.2012 at 9:30 am

    When we speak of legalizing marijuana, we actually refer to re-legalizing cannabis–cannabis sativa, cannabis indica, and many hybrids of the two. Not a man-made drug, but Medicinal Herb Number One, in use by humans for thousands of years.

    Judges sometimes remind us that the police, in general, are allowed to deceive. As we’ve seen above, this goes double for agents (avowed and unavowed) of Richard Nixon’s Drug Enforcement Agency, whose chief is empowered by law to oppose ‘drug legalization’ by any means necessary, which includes lies, destroying or repressing research, and a billion-dollar disinformation campaign in the failed, yet still-thriving, ‘War on Drugs’. DEA speakers open with the lie that, ‘Marijuana isn’t medicine.’ Patent medicine? No, except for Marinol, an inferior, synthetic cannabinoid. Natural medicine? Yes. …Use–effective, celebrated use, dating to prehistory–is a population study which can’t be beaten or truly denied. Natural medicine is a self-evident, inalienable, Natural Right, protected by the 9th and 14th Amendments. The Federal Controlled Substances Act’s singular scheduling of cannabis is unconstitutional, on the grounds that it does not satisfy the “Necessary and Proper” clause.

    • Carlitos Corazon on 02.08.2012 at 5:13 pm

      So, in other words, any drug that can be synthesized from the “natural” world (pretty much includes everything) is OK in your book. That would include cannibis, mescaline, psychedelics, hallucinogens, and more. Yes, marijuana has been used for hundreds if not thousands of years. And they used to drill holes in one’s skull to let out evil spirits… can’t we evolve? And I can’t believe you mentioned Nixon. Really?

      • Darryl Hanne on 02.20.2012 at 8:28 am

        > … can’t we evolve?

        So your suggestion is to use police to force people to “evolve”? Into what? Sober people? And that will take us where, exactly? Into a glorious utopia? Obviously you are oblivious of the absurdity of such a suggestion. Abstaining from alcohol/pot/psychedelics/etc does not make anyone a better (or worse) person. You display a delusional superiority complex, and yet you tell everyone else how they must live. Your empathy and intelligence blinds us all.

        I’ve known smart users and dumb abstainers. With merely this anecdotal evidence, your entire hypothesis is invalidated and must be thrown out. Seriously, get with the times – “evolve”, for you are lagging at the back of the pack sir, and slowing us all down.

  • Nathan on 02.08.2012 at 10:10 am

    lol 420 bro

  • Andrew C. Bairnsfather on 02.08.2012 at 5:17 pm

    With regard to employers and Wal-Mart. The only way to “sympathize” with them, from my standpoint, is I feel sorry for them for carrying around the burdensome lies of the Drug Warriors and Prohibitionists. I would encourage all to read this analysis of a recent study from Australia:

    There is no such thing as a drug-free workplace or drug-free America or drug-free person! Your own body makes “drugs.” The only societies that did not regularly take drugs are societies of old who lived in the arctic regions where there were no plants.

    Our society is under a constant bombardment of expensive pharmaceuticals. And since those have FAR WORSE side effects than the all-natural cannabis plant, a significant percentage of those who take pharmaceuticals take an shockingly large number of them daily, each pill used to “balance” the side effects of other pills.

    Unfortunately Mr. Carlos Corazon is mistaken. He does not list one so-called “significant side effect” of “long term marijuana use.” Why? Because there are none. In fact two recent studies of long term use have shown:

    1. Drug use not tied to mental decline in middle-age
    In a study of nearly 9,000 Britons whose memory and mental function were tested at age 50, researchers found that those who had used illegal drugs as recently as in their 40s did just as well or slightly better on the tests than peers who had never used drugs.

    2. 20-Year-Long Study Finds No Decline in Lung Function for Occasional Pot Smokers
    A healthy adult man can blow out about a gallon of air in one second, says researcher Stefan Kertesz, MD, an assistant professor of medicine at the University of Alabama at Birmingham.

    Pot smokers, on average, were able to blow out that gallon of air plus about 50 milliliters.

    For people who think pills are superior, I suggest giving up fruits, vegetables, meats, and dairy products and consume only vitamins and supplements. That way the vaunted goal of being highly specific as to intake amounts can be attained, then one does not have to worry about one orange being bigger than another, or one vegetable containing more vitamin A than another and just plain old not knowing what of the thousands of vitamins, minerals, and trace elements one is consuming or in what quantities.

    But, the fact is our Federal government is infested with hypocrisy. Cancerous, ever-growing bureaucracies have taken over, and they reject sound science in favor of pseudo-science.

    Does the Federal government really reject that marijuana has medicinal properties? Definitely not. Witness the HHS patent, “Cannabinoids as Antioxidants and Neuroprotectants.” Or what about the references in cancer.gov to marijuana? Or what about the Compassionate Care Protocol? The Federal program that still sends out marijuana cigarettes to the four remaining patients?

    Read about Irv Rosenfeld who receives 300 joints every 28 days from the Feds.
    Mr. Rosenfeld smokes around 10 joints per day! He’s a successful stock broker.

    The DEA’s own Administrative Law Judge Francis L. Young in his ruling in 1988 wrote, “Marijuana is one of the safest therapeutically active substances known to man.”

  • Carlitos Corazon on 02.09.2012 at 7:03 am

    Although I have heard teens try to justify marijuana use, until I read some of these comments, I did not realize just how far some people will go in attempting to defend and facilitate their illegal drug use and addiction. OK… I’ve got it: You want your fix. And it will destroy your life and cost the U.S. taxpayer, who has to cover the excessive healthcare costs derivative of the mental weakness of the less than 8% of the U.S. population that uses marijuana. Try this: Get clean for six months… then make a rational decision. Discussing the “benefits” of marijuana use while you’re an active user is folly.

    • Darryl Hanne on 02.20.2012 at 8:49 am

      Yes. these people who were emphatically trying to explain their positions are all just dumb stoners who want an excuse to fry their minds some more. Yes, that MUST be the reason. It is the only possible conclusion. Occam’s Razor.

      Meanwhile your condescending posts are littered with errors, flaws, wilful ignorance, and a lack of actual scientific evidence.

      Who wants their “fix”? We can all bury our heads in the sand again, feels nice and cool down there.

      • Sam Stone on 03.22.2012 at 1:39 pm

        Darryl, thanks for supporting Carlitos’ position. I agree with you… the simplest explanation is the right one in this case. The commenters supporting the legalization of marijuana are almost certainly users.

        Oh, could you tell us what errors, flaws and wilful (sic) ignorance you’re referring to? Do you mean misspellings?

        And what scientific evidence are you looking for? That smoking is bad for you? That driving under the influence of marijuana is not a good thing? Do you really need Carlitos to cite another “study” to belive that?

        Finally, I completely missed the point of the “ostrich” reference. Unless you were referring to you ignoring the facts.

  • Andrew C. Bairnsfather on 02.13.2012 at 10:45 pm

    First off Carlitos Corazon I wish to thank you for your insults, insinuations, and ad hominem attacks. Although, it seems the comment guidelines have recently been revised to remove the word “ad hominem” it doesn’t bother me; because this merely shows future readers that science, reason, and history are on the side of drug policy reformers.

    If you are truly interested in numbers and costs then I suggest you give close scrutiny to these two important websites:
    500+ Economists say regulate marijuana similar to alcohol

    Count the Costs: 50 Years of the War on Drugs

    At both websites you can find copious research and LOTS of names for you to accuse of being “life destroying” pot heads! :-) Kind of like these folks perhaps? http://www.veryimportantpotheads.com/
    Because everyone knows how horrible Richard Branson, Rick Steeves, Rodney Dangerfield, Kareem Abdul Jabbar, Michael Phelps, Willie Nelson, John Lennon, Paul McCartney, Carl Sagan, etc… turned out.

    Please also let me introduce you to LEAP, Law Enforcement Against Prohibition. http://LEAP.cc

    Not only do they say legalize marijuana, but legalize cocaine, methamphetamine, heroin, LSD, peyote, etc…

    Many of them bought in to the “Reefer Madness” (title of this post) but no more.

    In conclusion, marijuana, nor any drug, makes a person “dirty.” Jesus clearly says that nothing a person can take into one’s body makes a person “dirty” (spiritually unclean). Instead what makes a person spiritual unclean is what comes out of a person’s mouth (and writing, by extension): lies, slander, ad hominem attacks, etc…

    • Sam Stone on 03.22.2012 at 8:20 am

      Andrew, so Carlitos “insulted” you but acknowledging the obvious: that you are a majijuana user? Why do you consider that an insult?

      I suggest you take the next step and openly defy the law: Smoke at your work… in public buildings… even in front of the police station.

      Take up the banner for all of us Andrew! Don’t just read biased and faulted studies on the internet, but lead us into a world where all recreational drugs are legal and the subsequent medical intervention is free! Take a real stand (vice a paper one)! Do something besides drafting “posts”. Lead us Andrew!

      (Oh, and forgive us for completely forgetting about you when you wind up jail or the hospital.)

  • Andrew C. Bairnsfather on 02.13.2012 at 11:06 pm

    You know, I’ve thought long and hard about this for a very long time.

    Why are you not happy that truth has come to light? That scientific findings have proved the overwhelming majority of those who consume cannabis are healthier and smarter: seems to me every rational person should be glad that data has been published.

    In a similar vein, we also have tons of research which proves the overwhelming majority of those who drink alcohol are healthier than those who don’t.

    Every honest business person wants his/her competitors to operate above board, but as long as we have drug prohibition, hundreds of billions of dollars will be laundered through sham businesses. That, as everyone should know, is harmful and can only be remedied one way. To bring drugs back into the law where we can control them versus leaving them solely in the control of the black market.

    • Sam Stone on 03.22.2012 at 7:59 am

      Andrew… I’m sure you are well meaning, but you are deep into rationalizing your own habit; citing this biased study and that one. Bunk. (One can find internet “research” to support pedophilia”.) Virtually no one who is not a user will defend marijuana’s use, and that’s the issue: You can’t think straight about your use, because you use. You simply look for “evidence” to defend your drug habit. I’m sorry that you “have thought about this for a long time”. I suggest you get clean and try again.

      People are, by nature, generally mentally “weak”. They will do whatever makes them feel good, no matter what the negative consequences. Just look at the obesity epidemic in this country; or the number of alcoholics and drug addicts.

      All things being equal, I don’t care if you drink yourself to death or overdose on your drug of choice but… when you do put yourself in the hospital, you expect the taxpayer to pay a large part of your tab – That’s where the government has an obligation to step in. At some point, the government HAS to protect people from their own excesses.

      • Rex on 05.02.2016 at 5:35 am

        I used to smoke pot every day, I was happy then… Now I don’t drink or smoke pot, and haven’t for 5 years. According your comments I should be a better person now. I am sober, and work at my job where I’m subjugated by rules and regulations of my employer and people like you who think your greater than thou because you think you have the answers to the human condition. Who thinks they have the right to stand on there righteous soap box and preach about sobriety and what type of employee I should be. How I should conform to their ideals of what a “good employee” should be or what a good person does to function in western civilization. Really!! I would rather smoke pot than to be micromanaged by a hypocrite who doesn’t have a clue what there talking about. The only reason I don’t smoke weed, is because I can’t afford to lose my job. I was much happier smoking weed, my sex life was better and I was a better person to my fellow human beings. I’m stone cold sober writing this, what’s your excuse.

  • MMN on 02.16.2012 at 11:57 pm

    Pretty ridiculous if you ask me. It just really irritates me that marijuana is legal for medicinal use on a state basis but the FEDS/DEA still consider it illegal.

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