Should medical pot users be protected from job firings?

LANSING — In November 2009, Joseph Casias was fired from his job at a Battle Creek Walmart store after a drug test he’d taken during treatment for a workplace knee injury came back positive for marijuana.

Earlier that year, Casias received a card identifying him as a registered patient under Michigan’s medical marijuana law, according to court records from a wrongful termination lawsuit he later would file against the Bentonville, Ark.-based retailer.

Casias showed his card both to the medical staff giving the drug test and to his shift manager, records show, but was nevertheless fired for violating the chain’s drug policy. When he sued, a federal district court and the 6th U.S. Circuit Court of Appeals, each sided with Wal-Mart Stores Inc., contending the state’s medical marijuana statute doesn’t regulate the terms of private employment.

Citing Casias’s case, a Democratic state lawmaker has introduced legislation that would prevent employers from firing or taking other disciplinary action against employees solely on the basis of their status as medical marijuana patients.

Rep. Sam Singh, of East Lansing, says the intent of House Bill 5161 is to treat medical marijuana the same as any other pharmaceutical medication and force employers to prove its use interfered with an employee’s job performance, especially if that use happened outside of work hours.

The intent is to prevent blanket firings and discrimination against workers who use the drug ‒ still considered an illegal controlled substance under federal law ‒ for medical purposes, Singh said.

Some attorneys who specialize in employment law, however, caution that the bill as written is ripe for litigation, due to language they perceive as vague and overly broad.

For instance, the bill’s wording prevents employers from taking action against a worker if the marijuana use “is not incompatible with and does not hinder job performance” — a phrase some lawyers say would place the burden on employers to show that the pot use interferes with a given employee’s performance.

The bill also would prevent employers from asking whether a worker has a medical marijuana card unless a worker faces discipline or termination for a “specific incident involving marijuana” and showing the card would prevent the job action.

“In my opinion, this is creating almost a special exempt class for the use of marijuana,” said Terry Bonnette, a partner with Nemeth Law PC, a Detroit law firm that represents employers.

“What does a specific incident involving marijuana mean?” Bonnette said. “If I am doing a random drug screen and an employee tests positive for marijuana in that random drug screen, is that a specific incident involving marijuana? Or does there have to be, for example, a workplace incident? Does an employee have to drive a hi-lo into a loading dock for me to say, yes, there is an incident?”

Singh said the wording was intentional, to give employers flexibility when dealing with situations on a case-by-case basis. Yes, a positive drug test likely would trigger the job action, he said.

“You’d have to have some very strong compelling reason as an employer to suggest that somebody’s medical marijuana use on their off time is impacting their performance that would cause a detriment to your company,” Singh said.

“The onus really is back onto the employer to make the case for this — versus the other way around — which is automatically being able to assume (marijuana use) is adversely affecting the individual.”

Criticism of the law

Michigan’s 2008 voter-initiated medical marijuana law has been criticized for its broadness since the start. A notable example is the debate over whether dispensaries that proliferated in cities such as Detroit are legal.

Lawmakers this session have taken up bills to more strictly regulate the medical marijuana industry, including allowing edible marijuana products and setting up a so-called “seed-to-sale” tracking system. The bills cleared the House but have stalled in the Senate’s judiciary committee; its chairman, Sen. Rick Jones, has asked Senate Majority Leader Arlan Meekhof to discharge the bills for a vote in the full chamber. Both men are Republicans.

But the law largely has steered clear of private employers. Judges, including the federal appeals court panel that decided Casias’ case, have interpreted the law as not extending to businesses.

The court wrote that “the statutory language of the (law) does not support Plaintiff’s interpretation that the statute provides protection against disciplinary actions by a business, inasmuch as the statute fails to regulate private employment actions”

Bonnette, of Nemeth Law, says he doesn’t believe the law needs further clarification. The amendment being proposed would preclude employers from enforcing their existing drug policies, he argued.

Enforcement headaches

Mohammed Arsiwala, M.D., said he has a zero-tolerance drug policy for his roughly 200 employees at Livonia-based Michigan Urgent Care and Occupational Health, which operates 10 clinics in Southeast Michigan.

Michigan Urgent Care conducts random drug screenings, for which employees are drawn through a computer-generated system. (Arsiwala said he was tested twice himself last year.)

Under a zero-tolerance policy, if an employee tested positive for THC, the main chemical in marijuana, “basically that person would lose their job,” Arsiwala said.

But marijuana can show up on a drug test for a while after a person uses it. And under the bill, someone would have to determine whether the employee was under the influence at the time of the random test or after a workplace safety incident, he said.

“Of course it’s going to be difficult to enforce,” Arsiwala said.

In Casias’ case, he told a court he had been using the drug to treat pain from sinus cancer and an inoperable brain tumor he was diagnosed with at 17. He insisted he never used marijuana before or during his work shifts at Walmart.

According to court records, the urine drug test he was given after twisting his knee while pushing a cart at work came back positive.

Casias lost his job.

An issue of fairness

Singh said his bill allows employers to take job action against a worker if there is cause to do so, such as if the employee was caught using marijuana on the job or comes to work under the influence.
Treating marijuana as a medicine, though, should protect employees who use the drug on their personal time, Singh said.

Yet that raises the possibility for the standard to be unfairly applied, said Marlo Johnson Roebuck, office managing shareholder for law firm Jackson Lewis PC, which represents employers, and has offices in Southfield and Grand Rapids. Companies with zero-tolerance drug policies likely would have to rewrite them and doing so could give medical marijuana patients unfair privilege, Roebuck argued.

For instance, Roebuck said, the bill’s language could make it so that an employee who wasn’t using a substance and was involved in a safety incident at work could be fired, while another employee who also happened to be a medical marijuana patient might keep his or her job if involved in a similar incident.

“If they are protected in that situation, then they would probably be receiving more protection than the average employee who doesn’t have a medical marijuana card, so that could create some inconsistent treatment,” she said.

Singh said he hopes his bill will be the start of the conversation, adding that he would be open to discussing ways to tighten the language if the business community requested it.

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Comments

Earl Newman
Mon, 01/18/2016 - 8:42am
One is forced to ask the question, "What hope is there?" I have never seen the legislature and the governor handle a simple issue as badly as they have the question of medical use of marijuana. People with full time jobs and with enormous staffs at their disposal should surely be able to craft legislation that will enable persons with legitimate medical needs to have their needs met without losing their jobs. Put this next to what we have seen our state government do with the roads problem and the Flint water problem. What do these situations tell us? How can we fix it? The system is not broken but surely something is amiss.
ArtZ
Mon, 01/18/2016 - 10:01am
One can not limit the question of a writing such a law to a given state or Washington dc. ....................... it is wrought with the unintended consequences ,,,,,,,,,,,,,,,,,,,,,,,, from surgeon, pilot, bus driver, teacher................. legalization for Colorado shows the intent and reality are two different worlds. Cookies to the pipe all started the medical need?
CrV
Tue, 01/19/2016 - 10:34am
I think you have a couple of stuck keys...idiot.
William C. Plumpe
Mon, 01/18/2016 - 10:03am
I have no problem with individuals with legitimate medical conditions using pot to relieve pain---say someone on chemo who uses pot to relieve the pain and discomfort but the law is so vague that it is absurdly easy to get a medical marijuana certificate and you can actually get one if your medical problem is "your shoes are too tight". So in reality the certificate means absolutely nothing and has no real medical authority or value except in some limited and rare cases. Then the user should be able to get a prescription from a real, bona fide medical doctor and not a quack. I don't think it's a good idea at all to set up a situation where an employee could come to work stoned, flash their medical marijuana card and claim they had a legitimate medical reason to be under the influence when in fact they had no such valid reason. Treat it the same way you would if someone showed up drunk on the job---fire them on the spot. Employers have no control over what employees do in their spare time but I do believe employers have the right to expect their employees to show up sober and ready to work. The whole medical marijuana industry in Michigan is nothing more than a de facto means to legalize marijuana Statewide. de facto way to legalize pot Statewide.
Jeff
Mon, 01/18/2016 - 7:51pm
You can't blame the Legislature or the Governor for this mess. The MM law was the result of a ballot initiative that obviously few people understood. It is perhaps the most pathetically written piece of legislation in the history of the State of Michigan. The court will continue to shred this law while begging the Legislature to fix It, I'm not at all surprised by the Legislature's refusal to get involved in this mess.
David
Mon, 01/18/2016 - 8:52am
The comments made by Earl are very valid. Given the performance of our Michigan legislature and governor, what would make anyone think a reasonable review of this issue could be accomplished? We have learned to expect that majority rule does not prevail in legislative action regarding the will of the people.
Hardvark
Mon, 01/18/2016 - 11:21am
I was of the belief that MM was the last resort drug for pain, used after all else was tried and failed. If a person has a chronic pain issue due to work injuries, then he better find another line of work. Rep. Singh is pandering for votes in his district and I can't believe he would accept his children being chauffeured by a bus driver stoned or a spaced out mechanic doing a brake job on his wife's car. But then, that's speculation on my part.
Joe
Mon, 01/18/2016 - 12:33pm
Are employees tested and fired for using opiate prescription drugs?
David
Tue, 01/19/2016 - 8:38am
It should and would be handled the same as if an employee came to work under the influence of alcohol or prescription pain killers (which are both legal). I think some people WANT to make it an opportunity to make people suffer
Michael J
Mon, 01/18/2016 - 11:27am
Why is this being debated? If Michigan law treats marijuana use in this case as a legal, controlled medication and a patient is using it as prescribed by their healthcare provider then the patient's employer should be expected to treat their use of the marijuana the same way as any other medication. This just seems like a large corporation unwilling to comply with state law.
William Clark
Mon, 01/18/2016 - 11:40am
Me? I’ve read accounts of entrapment, coercion, and departmental greed, under color of antiquated, unconstitutional State forfeiture laws. An MSP crime lab instructed to report samples as being 'of unknown origin' rather than herbal marijuana, thereby bumping alleged 'crimes' up from misdemeanors to felonies. Policing for profit, a pose of being 'tough on crime', instead of pursuing real crimes against real victims. And don't look to the Attorney General for relief; he wants to run for Governor under these same dark flags. No one should promote the canard that marijuana is a drug. In truth, it's a medicinal herb, cultivated, bred, and evolved in service to human beings over thousands of years. I favor the MILegalize petition. Please visit its website and contribute to its campaign fund. Michigan is a Right to Farm State. If your land is suitable and you raise crops according to State standards, you may compete in the State's open market. One cannot patent a species of plant, only hybrids which one has developed. Limiting growers to corporate farms will reduce the number of strains available, and likely ensure that what is produced will be pesticide-rich. I'd say legalize marijuana but don't corporatize it. Never interfere with patients' rights to grow their own. And tell the police to take a hike. They are addicted to profiting from Michigan's antiquated, unconstitutional forfeiture law. Their reps have repeatedly hijacked lawmakers' votes to fine-tune the MMMA, by showing up ‘en masse’ and playing ‘tough cop’ in legislators’ offices just before a vote. “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the anti-war left and black people. We knew we couldn’t make it illegal to be either against the war or black, but by getting people to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, break up their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.” --John Erlichman Prohibition of marijuana is a premise built on a tissue of lies: Concern For Public Safety. Our new laws save hundreds of lives every year, on our highways alone. In November of 2011, a study at the University of Colorado found that, in the thirteen states that decriminalized marijuana between 1990 and 2009, traffic fatalities have dropped by nearly nine percent—now nearly ten percent in Michigan—more than the national average, while sales of beer went flat by five percent. No wonder Big Alcohol opposes it. Ambitious, unprincipled, profit-driven undertakers might be tempted too. In 2012, a study released by 4AutoinsuranceQuote revealed that marijuana users are safer drivers than non-marijuana users, as "the only significant effect that marijuana has on operating a motor vehicle is slower driving", which "is arguably a positive thing". Despite occasional accidents, eagerly reported by police-blotter ‘journalists’ as ‘marijuana-related’, a mix of substances was often involved. Alcohol, most likely, and/or prescription drugs, nicotine, caffeine, meth, cocaine, heroin, and a trace of the marijuana passed at a party ten days ago. However, on the whole, as revealed in big-time, insurance-industry stats, within the broad swath of mature, experienced consumers, slower and more cautious driving shows up in significant numbers. Legalization should improve those numbers further. No one has ever died from an overdose of marijuana. It's the most benign 'substance' in history. Most people—and particularly patients who medicate with marijuana--use it in place of prescription drugs or alcohol. Marijuana has many benefits, most of which are under-reported or never mentioned in American newspapers. Research at the University of Saskatchewan indicates that, unlike alcohol, cocaine, heroin, or Nancy (“Just say, ‘No!’”) Reagan’s beloved nicotine, marijuana is a neuroprotectant that actually encourages brain-cell growth. Research in Spain (the Guzman study) and other countries has discovered that it also has tumor-shrinking, anti-carcinogenic properties. These were confirmed by the 30-year Tashkin population study at UCLA. Drugs are man-made, cooked up in labs, for the sake of patents and the profits gained by them. Often useful, but typically burdened with cautionary notes and lists of side effects as long as one's arm. 'The works of Man are flawed.' Marijuana is a medicinal herb, the most benign and versatile in history. “Cannabis” in Latin, and “kanah bosm” in the old Hebrew scrolls, quite literally the Biblical Tree of Life, used by early Christians to treat everything from skin diseases to deep pain and despair. Why despair? Consider the current medical term for cannabis sativa: a “mood elevator”. . . as opposed to antidepressants, which ‘flatten out’ emotions, leaving patients numb to both depression and joy. The very name, “Christ” translates as “the anointed one”. Well then, anointed with what? It’s a fair question. And it wasn’t holy water, friends. Holy water came into wide use in the Middle Ages. In Biblical times it was used by a few tribes of Greek pagans. But Christ was neither Greek nor pagan. Medicinal oil, for the Prince of Peace. A formula from the Biblical era has been rediscovered. It specifies a strong dose of oil from kanah bosom, ‘the fragrant cane’ of a dozen uses: ink, paper, rope, nutrition. . . . It was clothing on their backs and incense in their temples. And a ‘skinful’ of medicinal oil could certainly calm one’s nerves, imparting a sense of benevolence and connection with all living things. No wonder that the ‘anointed one’ could gain a spark, an insight, a sense of the divine, and the confidence to convey those feelings to friends and neighbors. I am appalled at the number of 'Christian' politicians, prosecutors, and police who pose on church steps or kneeling in prayer on their campaign trails, but cannot or will not face the scientific or the historical truths about cannabis, Medicinal Herb Number One, safe and effective for thousands of years, and celebrated as sacraments by most of the world’s major religions.
Doug
Tue, 01/19/2016 - 8:13am
William you lost me on the paragraph about driving. I know of a great person who was hit head on with his daughter in the car and his wife and other daughter in a car following and seeing it all happen. The driver that caused the accident crossing over the center line, was under the influence. I figured he was a drunk driver. NO, under the influence of marijuana. Only marijuana. So take your statistics and you know what you can do with them. The whole family was affected watching the father, husband killed in the accident. The person under the influence walked away. Under the influence is under the influence. It causes the person to not make good decisions. Sometimes it kills people. I'm ok with medical marijuana if it would be regulated like other prescription drugs. I have seen where is helps people that are in need a way to live closer to a normal life. What we have right now is most people getting cards so they can use for recreation.
Ladonna
Mon, 01/18/2016 - 1:59pm
This sounds like a good place to start! Something needs to be done!
Charles Richards
Mon, 01/18/2016 - 3:14pm
Representative Singh is trying to have two mutually contradictory things. First, he says an employer could take action against an employee if they were caught "using marijuana on the job or comes to work under the influence." Then he says, " But then he says, "Treating marijuana as a medicine, though, should protect employees who use the drug on their personal time, Singh said." But the whole point of using marijuana as a medicine is for the user to be under its influence. The article says, "But marijuana can show up on a drug test for a while after a person uses it." The article would have been stronger and clearer if it had specified how long after use marijuana shows up on a test.
john yelle
Mon, 01/18/2016 - 8:20pm
So the employer(Walmart) is basically saying that having marijuana in my body is more dangerous in the workplace than being hungover from last night's binge, being a good employee notwithstanding. Since alcohol and some pharmacuticals leave my system more rapidly and being legal(?) will not get me fired but a random drug test showing THC would cause me to lose my job; even taking marijuana as long ago as a few days ago to alleviate pain or any medical reason. I'd rather work with the marijuana user than the hung over employee.
Nan
Wed, 01/20/2016 - 12:37pm
I agree... never known anyone under the influence of marajuana to get in a barroom brawl, beat their kids and/or wife , or cause a wreck in traffic. Medicinal herbs are very good, but Big Pharma wants to keep them off the market so they can continue to make huge profits. And Big Pharma donates to campaigns, which means most of our politicians are bought .
Duane
Tue, 01/19/2016 - 9:14am
I wonder why none care about a process that encourages the self-centered ideas becoming law without a formal process of risk assessment. Why doesn't the process formally require an assessment of unintended consequences, probable impact on those indirectly placed at risk by the law? Why aren't there some asking questions about the public impact/risks, why didn't someone ask about the unintended consequences? What are some of the unintended consequences and are the severe enough to interrupt the legislative process and the issue before the exclusive club in Lansing makes this into law? I believe in the right and the value of presenting ideas that are narrowly focused, but why isn't there a discipline that includes an assessment of risks/consequences but intended and unintended, why isn't there a discipline that brings in differing points of view, members of the public to talk about and report on the risks/consequences of such laws? The government has regulations they enforce that require certain industries that have the potential to impact the public to have such discipline and formal reporting, why can the Legislators and Governor put this into the legislative process why? Why do they show little interest in the public welfare? Are they simply so arrogant that they don’t believe anyone outside of Lansing can see and think of things they don’t? Do they think we are collectively or individually so stupid that we can’t identify and explain risks/consequences of propose legislation or finalized but not signed laws?
Jay
Fri, 01/22/2016 - 9:47am
Boy there are some very misinformed people here or people that just speculate.
Jay
Fri, 01/22/2016 - 10:47am
First of all I have to ask Hardvark and some of the others.Have you ever used marijuana before? Many people (especially people have never used it) speculate that marijuana impairs you to the point of say alcohol or something. That's simply not the case by any means especially to a seasoned medical marijuana user. Sure I don't recommend getting high for your very first time and going into work and some people just can't smoke it because they can't function. Pretty simple these people just don't use it. Moderation is the key an experienced marijuana user also knows his or her limitations and is not going to get completely baked or smoke the whole time there driving a school bus or performing brake work ect.. Also no its not a last resort it actually should be one of the first before highly addictive opiate medication. Listen just like all medications it works for some people and not others.
Jay
Fri, 01/22/2016 - 11:08am
William C Plumpe it should be easy to get certified because it works for many ailments and you do have to be approved by a bona fide doctor in the state of Michigan. The fly by nights that were all from the east side of the state in the beginning are no good anymore. I'm on probation and I got the judge to okay my medical card but I had to switch to a local bona fide doctor (was still under an east side Dr.from the start of the MMMP). My doctor is the most recognizable Medical Marijuana doctor in West Michigan and I am prescribed because of pain issues. I've been through the nightmare of opiate medication addiction. I don't wish that on anybody it's horrible. Of course you should be fired if you come to work completely stoned or completely drunk or completely pill high. Employers can fire you for anything they want to.lol There not going to give you immunity because you have a card. The thought of their hands being tied with that is just ridiculous.
Jay
Fri, 01/22/2016 - 11:19am
David I agree with most of what you say. But you can (and millions are every day) be under the influence of opiate medication while working. In all reality millions of people are drunk, stoned, high and everything you can think of at work everyday. The key is not getting caught or I should say be under the influence to the point where it's noticeable. Where we're screwed is if we get hurt on the job it's an out for the insurance company if you test positive for marijuana. They don't have to cover you and you can and most certainly will be fired.
Jay
Fri, 01/22/2016 - 11:33am
Doug how did they determine that the driver was under the influence of marijuana and to the point they were impaired enough to cause a deadly accident? Its detectable in your urine for up to 30 days and in your blood stream for 24 hours or more. The typical high of cannabis is at the most two, two and a half hours. So unless the driver admitted that he was high and that's the reason that caused the accident. There's no way to test them to be sure that they we're high enough to be impaired at the time of the accident. Put it this way under the influence of marijuana drivers are not causing a fraction of the deadly accidents in this country. Not trying to take anything away from the death its tragic and horrible for the family for sure.
Jay
Fri, 01/22/2016 - 11:52am
Jeff you're right the medical marijuana laws as and way more when first introduced written is a mess with lots of gray area. But don't think is part the state's fault for letting a bunch of high hippie lawyers write it up. It was written with all these holes in it for a reason to throw law enforcement off and not being to convict people for ridiculous crap pot charges. The very first year the law was written you can grow and possessed way more marijuana without a card then you could with one. With the card you are restricted to the laws of the Michigan Medical Marijuana Program. Now it was also written that if you had certification from a doctor and no card you could grow whatever it takes to go with uninterrupted use. Nothing about 12 plants nothing about it being indoors and nothing about two and a half ounces of dry cured marijuana. There was no restrictions. I know this very well because I actually had to use that loophole that particular year myself. I got a 20 year felony manufacturing (because it was outdoors) dropped to a $210 usage fine and it actually or could have been completely thrown out if I took it further. I have doctor's prescription with no State card. Ahhhhh No I gladly took the $210 charge and got the hell out of there. Hell yeah there's things to clarify in the medical marijuana laws. I really believe legalizing for recreational use is a can of worms we don't want opened up. Another huge mess started from scratch.