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?
Being an “inventory control manager” means he would have to either work with – or supervise personnel who work with – forklift equipment. He would also be responsible for loading unloading shipments off of trucks. Many people have been seriously hurt, even killed, doing this work.
If marijuana was the only possible medicine I might feel sorry for the guy, but it’s not. So yes, he deserves to be fired.
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I personally don’t smoke pot, I’m allergic. No Joke. Anywho, should he have been fired, NO. A Dr. thought it would help, and I saw as my Father died from renal failure, that it helps, w/ pain and nausea. I’m glad someone “ACLU” has taken up his cause, he’s fighting for his life, and now, no job. It’s a sore spot for me, I was fired from my job as a bartender, after one day of work, because I take prescription pain meds. I took my dosage at home, and carried nothing w/ me to the establishment, he still searched my purse, and called me a “junkie”, right before kicking me out. My best wished to “the wal-mart guy”. Ciao
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I know ALOT of marijuana smokers and believe me, they work better, sharper and more accurately when they have smoked than when they have not. Marijuana is not a drug, it is a plant. It was classified as a drug by mankind. Alcohol is considered a drug and yet many people have a few beers before heading out to work, which in my opinion is a lot worse. As long as the person isn’t smoking it during work hours there is no reason to fire them. It should be legal anyway. Oxycontin has been deadly and it is still legal. No one has ever died from doing straight marijuana.
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Hmmm this is definitely a tough one. I think that this area of the law really needs a review- a regular review too due to the changes in law involving drugs.
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Really, fired. Funny how concerned we (USA) are about weed. We imprison more people in the USA for weed than all the other countries in the world combined. A serious (ridiculous) waste of tax dollars and energy. Unfortunately, the federal law is against Wal-Mart boy, and Federal law trumps State Law – ergo a righteous firing of Wal-Mart boy- legally. So he has no recourse but to suck it up and move on. In the grand scheme of things- it sounds like Wally worlds loss of a great employee, who despite his cancer was showing up day after day and doing a great job- employer fail. I am thinking that given the debt spending and federal budget constraints – we may actually get to some federal legislation on weed that make sense……….
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He shouldn’t have been fire Fact(Marijuana makes you concentrate, More balanced and you learn better. So I think it’s wrong he was fire. I hope the man is O.K.
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I think its b.s. I was recently fired because word got oh that I blaze. I do but on my own time. The boss came in shop and said I got to let u go because word got to corporat that u smoke marijuana. I said u can’t fire me because someone said this and that. He said ur right, totally illegal but I know if i send u to take urine test u would fail and that as a boss and friend he didn’t want it to go on my record. I respect that but shouldn’t he maybe ask me first? Or send me to take test. Or even some kind of 2 week notice? I think I can get a law suit because there’s no possible evidence , I am the best painter in the shop, fastest too, I’m on probation which In there eyes I’m all good, never had any problems at work in fact every other shop I’ve worked at they want me back. I feel bad for the guy cause he’s sick and weed is the best mess. That pain killer pills like ocs and percs and stuff is junk. I think weed is the shit. I don’t even drink cause I can’t control myself. Weed makes u concentrate more I believe I’m at 100% when I’m high when I’m not I’m not fully there.lol. please someone tell me what u think. Good luck Walmart guy.
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I was fired today for pain meds with prescription knowing i took them when they hired me
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Chris Blankinship, Esq. Reply:
February 14th, 2012 at 8:14 am
Were you fired for taking or possessing the pain medications?
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