By:  LINDSEY O'NEILL, ESQ.

Interesting case in the news today… A Wal-Mart employee was fired for failing a customary drug test because he was a medical marijuana user. (This case is in Michigan, which has legalized medical marijuana for qualified medical purposes.) Apparently he was one of Wal-Mart’s best employees – even earning outstanding service awards. Plus -it wasn’t like he was smoking pot on the job… No, he only used marijuana after hours for pain associated with his long-term battle with cancer. Despite his stellar employment record, Wal-Mart fired him over the medical marijuana citing “safety” concerns. Seriously? This guy started with the company as a grocery stocker and worked his way up to inventory control manager – never had a safety problem, never did anything that was considered dangerous, nor was his performance ever questioned. Yet, all of a sudden, when they found out he’s a medical marijuana user, he became a safety concern? What safety hazards are at risk from someone who uses marijuana as pain medication at home, but who’s sober at work while performing his job duties?

This got me thinking… Lots of people take all kinds of prescription medication for chronic pain, like Vicodin for example. Methadone has also been prescribed for pain (whereas the traditional methadone Rx is to for heroin addicts). Oxycontin – another drug legally prescribed for pain. Depending on the patient, and perhaps the dosage, vicodin, methadone, oxycontin, or other pain medications may even impair the person’s motor skills, etc. Often those suffering from chronic pain take the medication throughout the day – even while at work. Should taking these medications be a valid reason to get fired from a job? No… in fact that would probably be illegal (in most cases).

Under the Americans with Disabilities Act (ADA), employers cannot discriminate in their hiring and firing practices based on an individual’s use of prescription medication for legitimate medical purposes, subject only to a few limited exceptions. Employees in positions “affecting public safety” (like police officers and firefighters) may have to report when they are taking medication that may affect their ability to perform essential functions. In making an adverse decision against these employees, an employer would have to demonstrate that the employee is unable to perform his/her essential job functions or, in fact, poses a direct threat to public safety that cannot be eliminated or reduced by reasonable accommodation.

To illustrate the ADA rule, the Equal Employment Opportunity Commission uses the following examples: (1) A police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job; (2) An airline could require its pilots to report when they are taking any medications that may impair their ability to fly; (3) A private security company may require its armed security officers who are expected to pursue and detain fleeing criminal suspects to have periodic blood pressure screenings and stress tests because it is concerned about the risk of harm to the public that could result if an officer has a sudden stroke. However, a fire department could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.  If an employee is wrongfully terminated, an employee can file a complaint withe the EEOC under the American with Disabilities Act.

A part of me can’t help wondering if it crossed the minds of Wal-Mart executives whether this cancer-stricken employee was a threat, not to public safety, but to their medical insurance policy rates. Cancer patients are costly. I sincerely hope this wasn’t a factor in the decision to fire the poor guy, but it did come up for me as a possibility. The ACLU has taken the case and filed a wrongful termination lawsuit against Wal-Mart for illegally firing someone over legal medical marijuana pain treatment.

What do you all think? Should the guy have been fired for being a medical marijuana patient (in compliance with the state of Michigan’s laws)? Or was Wal-Mart right to think his off-the-clock use of medical marijuana posed a legitimate safety concern when it comes to performing his grocery/inventory stocking duties? For which jobs would medical marijuana – or any prescription drug for that matter – be a safety factor?