Work Drug Tests Still OK Despite Medical Pot Laws

     (CN) – Private companies like Wal-Mart can fire Michigan employees who fail drug tests even though the state’s medical marijuana law might protect them from criminal prosecution, a federal judge in Grand Rapids, Mich., ruled.




     Joseph Casias, who had passed Wal-Mart’s mandatory drug screening when he was hired in 2004, claimed he should not have been fired for failing another test mandated for workers who are injured on the job.
     Before his termination, Casias was an inventory control manager at the Wal-Mart in Battle Creek. After the workplace injury, Casias got a state-issued medical marijuana registry card in June 2009 and began to use marijuana after work.
     Casias presented the card to the drug-testing staff and his shift manager at Wal-Mart, although no one, not even the store manager, had the authority to vary from the decisions made by Wal-Mart’s Drug Screening department at the corporate headquarters in Bentonville, Ark.
     After Casias filed a wrongful termination suit against Wal-Mart and the Troy Estill, the Battle Creek story manager, Wal-Mart removed the complaint from Calhoun County Circuit Court to District Court in November 2010.
     U.S. District Judge Robert J. Jonker upheld the case’s removal on Friday and granted Wal-Mart’s motion to dismiss the case.
     Casias had tried to transfer the case back to state court since one of the defendants, Estill, was also a Michigan resident, but Jonker agreed with Wal-Mart that Estill’s citizenship should be disregarded since the decision to fire came from corporate.
     “Contrary to Mr. Casias’s contention, acting solely as a messenger cannot impose liability on a corporate employee,” Jonker wrote. “Such a holding would be unprecedented under Michigan law. It would effectively expose the receptionist or secretary who typed the termination letter or delivered the termination message to the theoretical risk of personal liability.”
     In dismissing Casias’ complaint, the court found that the Michigan Medical Marihuana (sic) Act does not prohibit private employers from taking disciplinary action against an employee for conduct that the act protects from criminal prosecution.
     Wal-Mart contended that the state act is preempted by the federal Controlled Substances Act and the federal Americans with Disabilities Act, and that the state law does not provide employment protections to medical marijuana users.
     Jonker found that he did not need to consider whether the law was actually preempted because there were other grounds available to decide the case.
     The ruling notes that the state statute addresses adverse public action by the state but does not regulate private employment.
     “The MMMA [Michigan Medical Marihuana Act] does not even formally ‘de-criminalize’ the use of medical marijuana; rather, it simply provides an affirmative defense and other similarly limited protections in the face of criminal proceedings,” Jonker wrote. “As the Michigan Court of Appeals recognized in Redden, possession and use of marijuana in Michigan – even for medical purposes – is still a crime.”
     While the law provides a limited “affirmative defense” from state action in limited medical marijuana situations, it is silent in many respects, such as private employment rights, as well the rights of private tenants and students.
     As an at-will employee of Wal-Mart, the act only extends Casias protection from forfeiture or seizure and, only possibly, arrest and criminal prosecution.
     In a footnote to the decision, Jonker cited a passage from a concurring opinion in the 2010 case People v. Redden from the Michigan Court of Appeals.
     “Until [the Michigan] Supreme Court and Legislature clarify and define the scope of the MMMA, it is important to proceed cautiously when taking advantage of the protections in it,” Judge Peter O’Connell wrote. “Those citizens who proceed without due caution will become test cases and may lose both their property and their liberty.”

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