Protecting the employee rights of medical marijuana users


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Image: Cannabis Destiny / CC BY-ND

Just 2 years ago, the idea of random drug tests for public officials was brought up. To this, Florida Rep. Jimmie Smith responded by quoting the First Amendment against drug testing. “It was found to be unconstitutional to drug test elected officials because it prevents us, as citizens, from having that First Amendment right,” he said.

Of course, Smith’s defense was wrong. He misinterpreted Supreme Court case law and even cited the wrong amendment to the US constitution. But it was a sound bite that was repeated over and over.

Now, years later and after marijuana has been legalized in 2 US states, it’s being brought up again with a sense of irony. After all, Colorado and Washington may be the only 2 states (so far) to legalize recreational weed.  But others have laws decriminalizing medical marijuana.

And workers may be at risk of losing their jobs if they test positive for medicinal weed.

How Medicinal Marijuana Cost Me My Job

Dead end?

This is the case of Joseph Casias.

Mr. Casias suffers from a rare form of cancer that’s affecting his nasal cavity and brain. He is constantly in pain. His doctor prescribed marijuana to help ease the daily pain. He has a medical marijuana card to prove it, too.

Mr. Casias, it must be mentioned, lives in Michigan. And Michigan is one of the 20 states (plus DC) where weed is legal if used for medical purposes.

Now, Mr. Casias worked at WalMart. He has been employed for 5 years. In 2008, he was even given an Associate of the Year Award. In 2009, he was fired. The reason? He failed a drug test.

He is just one of many Americans at risk of losing their jobs because of medical marijuana use.

A drug-testing bill was actually signed into law on March 19, 2012 by Gov. Rick Scott. The bill allows state agencies to randomly test no more than 10% of their workforce every quarter. Anyone who fails a test can be fired even if it’s just a first offense.

According to the US Department of Labor, majority of employers across the country are NOT required to test for drugs. It’s not even required under the Drug-Free Workplace Act of 1988. However, most private employers do have the right to test for illegal substances.

Current law also permits non-union companies to require drug tests for applicants and employees. In unionized workforces, drug testing implementation must be negotiated.

But there’s really nothing to specifically cover medical marijuana. Without laws to govern this and defend people like Mr. Casias, he and many medical marijuana users like him are being let go from their jobs.

Glenn Greenwald was quoted by the New York Times: “In some cases, workers have been fired for failing drug tests despite having prescriptions saying, in effect, that what they are doing is legal according to the laws of their states.”

How Many Medical Marijuana Users are There?

Source: ProCon.org

To date, there are approximately over 2.4 million medical marijuana patients. The first state to legalize medical marijuana was California. There are over 37,000 medical marijuana cards that have been authorized there since 2004. In Michigan, the Department of Community Health reports approximately 10,800 people with medical marijuana cards.

Are all these people at risk of losing their jobs then? It might be a safe assumption.

There’s no data available to indicate how many exactly are at risk of being fired. Neither is data available to indicate how many may not get hired for using pot in their treatment. Because generally, those who have been fired stay quiet or lest they risk not getting hired by another company again.

Who’s Going to Protect Medical Pot Users?

That’s a good question, isn’t it?

The National Organization for Reform of Marijuana Laws (NORML) has a legal counsel team that is bombarded yearly with as much as 300 emails and phone calls from medicinal weed users. They’ve mostly been fired from jobs. Some has had their job offers taken back after failing a drug test.

Keith Stroup, a member of this team, said, “Usually they talk about how they have lost their job. And I tell them there’s not a thing they can do about it.”

In California back in 2008, an Air Force veteran was fired by his telecommunications company employer after just a few weeks. He had chronic and disabling back pain and was using weed to help alleviate the discomfort. The Supreme Court sided with his employers.

It was a landmark case that had many medicinal marijuana users worried.

Many employers argue that they want their employees to work efficiently. They need them to be dependable and hard-working. Conditions that are not possible when they are high.

Mr. Casias, in his case, argues that he never went to work under the influence. But where he is from, employment is at-will. That means employers can pretty much terminate any worker for any reason except for being in federally protected classes (like race, gender and religion.) Medical marijuana users? A law passed in 2008 actually specifically states that those with medical marijuana cards can’t be “denied any right or privilege” by a “business or occupational or professional licensing board.” So maybe there’s hope yet.

What does WalMart have to say about it? Only that they acted within the federal law guidelines. After all, the federal government still bans weed.

What Now?

Twenty-seven-year-old Jonathan Hogue of Portland, Oregon suffers from arthritis. He uses marijuana to help ease the back pain. Some months ago, his nursing job offer was rescinded because of it.

“It’s straight discrimination,” Hogue said. “I was trying to be completely honest with them about not trying to hide it because it’s not illegal.”

So yes. Marijuana may have been legalized for medicinal use. But it doesn’t seem to have stopped the trouble for those who are sick and seeking alternative treatments. And they’re no longer just suffering physically for it, they’re also losing their means of livelihood.

Is it straight up discrimination, as Seattle, Washington labor attorney Douglas Hiatt also says it is? Maybe. The debate rages on.

Because anti-discrimination laws just won’t wash everywhere. Take for example Massachusetts. State laws don’t outline employer’s obligations and marijuana remains a federally scheduled drug. So registered or not, patients are at risk of being unemployed as a result of smoking weed.

But for people like Hogue and Casias, “I want my job back” is their only concern. But who’s to say how, or when, they’ll get it back.

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