Cancer Patient Can Be Fired by Wal-Mart for Medical Marijuana Use.

downloadThere was dominant debate in the Tennessee legislature this year for passing a medical marijuana bill allowing patients with a prescription to benefit from its medicinal properties.  The issue that was not part of the debate was its impact on private employers and whether they must adopt a similarly progressive policy or regulate private employment in any way.  A recent case out of the Michigan district which is part of the Sixth Circuit as Tennessee is may have application to a potential parallel cause of action locally.

In 2008, Michigan passed the Michigan Medical Marihuana Act permitting the “administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.”  A qualifying patient as defined would be issued a registry identification card by the Michigan Department of Community of Health and this would deter arrest, prosecution, or such other criminal penalty.

The Plaintiff, in the matter of Casius v. Wal-Mart (1:10CV781 Western District Michigan), was employed by Wal-Mart for over five years and was diagnosed with an inoperable sinus tumor.  Mr. Casius was issued this identification card and presented it to the hospital where he was treated for an injury sustained at work.  Pursuant to Wal-Mart policy, he was issued a drug test which tested positive for marijuana (marihuana is medical term).  The employee attested that he never arrived at work under the influence or used the marijuana on the job.  The identification card was presented to Mr. Estill who was the store manager.  The manager reported the incident to corporate with a copy of the card.  One week later, corporate instructed Mr. Estill to terminate Mr. Casius’ employment for violation of Wal-Mart policy prohibiting employees’ drug use.

A cause of action was filed by the Plaintiff against Wal-Mart and Mr. Estill individually for the purpose as the Court noted to avoid diversity jurisdiction and keeping the matter in state court.  The lawsuit claimed wrongful termination and violation of the MMMA, arguing that the statute precluded and regulated private employment from adverse employment actions against qualifying patients with such an identification card and being on the registry.  The Court granted Wal-Mart’s motion to dismiss for failure to state a claim and denied Plaintiff’s motion to remand the matter back to state court.  The action against Mr. Estill, the store manager, was dismissed as the court applied the fraudulent joinder doctrine to the diversity of citizenship.  The court also found that Mr. Estill was merely communicating the decision to terminate by corporate.  Wal-Mart corporate has their drug testing unit at their headquarters for this very reason to maintain the corporate color of action.

According to the MMMA:

“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 . . . .”

As is typical, a legislature drafts legislation that is textually and/or facially ambiguous opening the courthouse doors to litigation over legislative inent.  The district court was to decide whether the term “business” applied to “licensing board” or applied distinctively to “businesses” and a prohibition of adverse of employment action. Specifically, the court concluded that the “MMMA contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses.”  The Sixth Circuit Court of Appeals held “the statutory language of the MMMA 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.” The Court noted the absence of any technical language in the statute applying to private employers or to employment in context and more specifically it proscribed punitive action by a “business” or “professional” licensing board.

Legislators at the state capital would be well served to review this opinion and specifically whether such a potential medical marijuana bill would regulate private employment by precluding adverse employment actions towards those who are “qualifying patients.”  The debate becomes even more perplexing in that employers are challenged with determining when an employee is under the influence as marijuana remains in a patient’s system for up to thirty eight days though its immediate effects are short lived.

About Roland

Roland was born in Nashville, Tennessee and raised in Mt. Juliet, Tennessee. The first few years he resided in Paris, France with his mother who was French. In Hendersonville, he attended Beech Senior High School where played soccer and studied in the honors curriculum. Subsequently, he pursued two majors in political science and economics while graduating in three years.

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