Wal-Mart Fires Employee Over Medical Marihuana Use

In 2008, the Michigan Medical Marihuana Act (MMMA) became law, which permits the medical use of the drug under state law and prohibits employers from terminating employees who are authorized to using marihuana by the statute. The law forbids employment discipline for the proper, off-duty and off-site, use of medical marihuana.

A Wal-Mart employee sued after he was fired for testing positive for marihuana use. Joseph Casias, five-year employee of the Wal-Mart Store in Battle Creek, MI, suffers from inoperable brain cancer, a condition that leaves him in constant pain. In spite of the pain, Mr. Casias was an exemplary employee, winning the "Associate of the Year" from the store in 2008.

In consultation with his doctor, he tried using marihuana. The marihuana was very effective. Unfortunately, for Mr. Casias, he turned his ankle in an ordinary workplace accident and had to go to an emergency room.

As part of the treatment for his injury, he was given a drug test. He tested positive for marihuana use, which he had disclosed to the medical personnel by showing his registry card from the Michigan Department of Community Health.

A few days later he was fired for testing positive for drug use. The lawsuit claims Wal-Mart violated his rights under the Michigan Medical Marihuana Act (MMMA). The case is currently on appeal, and will undoubtedly be the first of many cases litigating this issue.

The Michigan Medical Marihuana Act Protections For A Qualifying Patient

The MMMA permits "Qualifying patients" to possess and use marihuana for debilitating medical conditions.

In the employment context, the question is can a employer fire an employee for marihuana use if they are a "qualifying patient" and using marihuana for pain relief of a debilitating medical condition?

The language of the statue appears to answer the question with a clear "No."

Section 333.26424, entitled "Protections for qualifying patients, primary caregivers, physicians, and other persons regarding medical use of marihuana..." states,

  • A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act. (italics added)

Termination for testing positive from a drug test seems to fall under the MMMA's prohibition that a patient "shall not be subject to...penalty...or...denied any right or privilege...or disciplinary action by a business..."

The MMMA, in Section 333.26428, further states, "If a patient or a patient's primary caregiver demonstrates the patient's medical purpose for using marihuana pursuant to this section, the patient and the patient's primary caregiver shall not be subject to the following for the patient's medical use of marihuana:

  • disciplinary action by a business or occupational or professional licensing board or bureau; or
  • forfeiture of any interest in or right to property." (italics added)

However, the use of marihuana in the workplace and working while under the influence of marihuana is still prohibited. Section 333.26427 states, "Nothing in this act shall be construed to require...An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana."

If you have been discharged or suffered other disciplinary action because of your use of marihuana under MMMA, you need to contact a knowledgeable Michigan employment law attorney. The act clearly gives protection to qualifying patients, and permitting employers to fire employees would undercut and frustrate the essential purpose of the act.