With more states scaling back on the once-blanket illegality of marijuana possession and use, some are questioning how those legislative changes will affect employment regulation. Cases from Michigan and Oregon have addressed what obligations, if any, private employment has with respect to individuals’ non-criminal use of marijuana.
Joseph Casias was terminated from Wal-Mart Stores, Inc., in Michigan state, after he tested positive for marijuana. See Casias v. Wal-Mart Stores, Inc., 764 F. Supp.2d 914 (W.D. Mich. 2011). Michigan is one of the states that permits medical marijuana use (pursuant to the “Michigan Medical Marijuana Act”), and Mr. Casias was an approved user, as the result of his inoperable brain tumor.
Mr. Casias prosecuted his wrongful termination claim under the theory that Wal-Mart illegally applied its drug policies to him. To support the wrongful termination claim, Mr. Casias argued that the MMMA provided him a private cause of action, but the Michigan district court dismissed the claim, noting that a private right of action cannot be inferred without evidence of legislative intent to create the cause of action.
Consequently, Mr. Casias alternatively argued that his termination violated public policy of Michigan vis-à-vis the MMMA. The court also dismissed the public policy claim, stating that the purpose of the MMMA was to create an “affirmative defense” (the legislation did not effectuate any “de-criminalization”) to prevent the arrest of those who are “seriously ill who have a medical need to use marihuana.” Id. (citing to M.C.L. § 333.26422(b)).
Finally, the court noted that the MMMA did not purport to regulation or mention private employment, and accepting Mr. Casias’ theory would “create a new protected employee class in Michigan and mark a radical departure from the general rule of at-will employment in Michigan.” Id. (citing to Lytle v. Malady, 458 Mich. 153, 163, 579 N.W.2d 906 (1998)).
What Mr. Casias did not argue, however, is that Wal-Mart, under either state disability discrimination legislation or the federal Americans With Disabilities Act, had any obligation to accommodate his prescribed cancer treatment. That argument was, however, asserted in the case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, Case No. SC S056265 (Oregon April, 14 2010).
The Emerald Steel case similarly involved Oregon’s “Medical Marijuana Act,” which authorizes persons holding registry identification cards to use marijuana for medical purposes and similarly exempts those individuals from state criminal prosecution. See ORS § 475.306(a). The employee in the Emerald Steel case obtained a registration card for the use of marijuana for anxiety, panic, and associated physical ailments. The employee advised his supervisors of his prescription for medical marijuana, and a week after that notice was given, the employee was terminated. The employee contested the termination under Oregon’s anti-discrimination statute.
After a convoluted discussion of the interplay between the federal Controlled Substances Act and Oregon’s Medical Marijuana Act, the Oregon court concluded that the federal law preempted the state law. Id. (stating that “whatever the wisdom of Congress’s policy choice to categorize marijuana as a Schedule I drug, the Supremacy Clause requires that we respect that choice when, as in this case, state law stands as an obstacle to the accomplishment of the full purposes of the federal law”).
While states are seeming to lead toward decriminalizing or authorizing of medical marijuana use, that “approval” has not been extended into private employment regulation. Consequently, in these states, an individual who uses marijuana may be protected from criminal prosecution, but his or her employment will not similarly be protected.