Worker Tests Positive for Marijuana, Claims State Law Protection

Wal-Mart terminated an employee for violating its drug policy after he tested positive for marijuana use. The employee, who used marijuana after work for medical purposes, sued his former employer, claiming that the Michigan Medical Marihuana Act (MMMA) protected his employment.

What happened. “Edward” was hired as an at-will employee at a Wal-Mart store in Battle Creek, Michigan, in 2004. He worked in a variety of positions, was considered a good employee, and was named “associate of the year” in 2008. After working for the company for 3 and one-half years, Edward was promoted to inventory control manager.

The drug testing policy in place during his employment with Wal-Mart required testing in certain situations. For example, Edward took—and passed—a drug test when hired in 2004. He was tested again after sustaining an injury at work in November 2009. Wal-Mart’s policy mandated testing for numerous drugs, including marijuana, after an injury.

Edward tested positive for marijuana, and the drug screening department at Wal-Mart’s corporate headquarters in Arkansas decided to terminate him. One week after Edward learned that he had tested positive, his store manager notified him that his employment was being terminated. The store manager had no authority to overrule the drug screening department’s decision.

Edward had started using marijuana for medical purposes in 2009. He qualified for a registry card under the MMMA, which was passed in 2008, protecting his use of marijuana from certain adverse state actions against conduct that would be illegal in Michigan without the registry card.

When taking the drug test, he showed the registry card to the drug-testing staff and to his shift manager. He also told the store manager about the registry card when informed about his termination. The manager said that Wal-Mart’s drug use policy was no exception for the MMMA.

Edward filed a complaint with the Calhoun County Circuit Court on June 29, 2010. He alleged wrongful discharge, claiming that Wal-Mart had violated the MMMA by applying its drug use policy to him. He also named the store manager in his suit. The case was moved to the U.S. District Court, Western District of Michigan, Southern Division. Edward filed a motion to remand to state court for lack of diversity jurisdiction, and Wal-Mart filed a motion to dismiss.

What the court said. The court denied Edward’s motion and granted Wal-Mart’s motion to dismiss.

“The fundamental problem with… [Edward’s] case is that the MMMA does not regulate private employment,” the court said. “Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state.”

“Nowhere does the MMA state that the statute regulates private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside of the workplace,” the court explained. Under Edward’s theory, “no private employer in Michigan could take any action against an employee based on an employee’s use of medical marijuana. This would create a new protected employee class in Michigan and mark a radical departure from the general rule of at-will employment in Michigan.”

The court also said that Edward cannot establish a cause of action against the store manager, because the MMMA does not impose individual liability upon managers. It described the manager as “simply an information conduit” and noted that Wal-Mart’s drug screening department was solely responsible for the termination decision.

“Contrary to… [Edward’s] contention, acting solely as a messenger cannot impose liability on a corporate employee,” the court explained. “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.” Casias v. Wal-Mart Stores, Inc., et al., U.S. District Court, Western District of Michigan, Southern Division, No. 1:10-CV-781 (2/11/11)

Point to remember: The MMMA dos not protect employees from disciplinary action stemming from their use of marijuana for medical purposes.

via : HR.BLR

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