•  
  •  
 

Cardozo Journal of Equal Rights & Social Justice

Abstract

All too often medical marijuana patients are fired when their employer discovers that they medicinally consume marijuana. Picture this, you have just been diagnosed with an extremely rare form of cancer, you are devastated, but return to work knowing that your life depends on you keeping your healthcare through your employer. Soon after, you begin chemotherapy ("chemo") and find yourself in some of the worst pain, nausea, and discomfort you have ever experienced in your lfe. Your oncologist prescribes a handful of pharmaceuticals that are supposed to alleviate the side-effects from chemo, but you find that, at best, they make you forget about the pain, but they are hardly worth taking because now you cannot eat or sleep.

You begin missing more work, but keep dragging yourself in because again, you need the healthcare. You plead with your oncologist for something to help with the chemo side effects, something that will keep you well enough to lead a normal life. Finally, your oncologist mentions your state's medical marijuana program, you are hesitant because you have never consumed illegal drugs in your whole life, but your doctor informs you that medical mar quana is a viable alternative to pharmaceuticals, and may provide more relief than the medications you are currently on. After some careful thought, you give in, anything to lessen the pain.

The next morning you arrive at the state-run medical marijuana dispensary with your new medical marijuana prescription. The employee at the counter informs you about the different options and recommends a high-CBD, low THC tincture to help with the chemo side-effects. You return home, and mix a couple drops of tincture with a cup of tea and drink it. Within twenty minutes you begin to feel the constant ache in your stomach subside, and ten minutes later, the damp, cold sweat that you have had since the beginning of chemo lessens. For the first time since you started chemo, you pick yourself up, clean your room and read your emails. You begin to re-live your life, and better yet, you wake up the next day and find that you do not have the immediate urge to vomit. You finally stop missing so much work, and feel a sense of relief knowing that your job is no longer on the line due to absence or unproductivity.

Even though you do not feel under the influence when you take your medical marijuana supplement, you never use the tincture before going to work, and continue to only take a couple drops with your tea once you are home at night. This is the first semblance of your life going back to normal. You are no longer defined by your diagnosis and begin to feel like yourself again. However, everything changes when one day at work, you twist your ankle and your boss informs you that you will be subject to a drug test before being taken to urgent care. This is standard company policy, so you think nothing of it. You have never done drugs in your life, and your doctor prescribed the medical marijuana to help with your cancer treatment. You are sure there cannot be anything wrong with that, since it's even legal under state law.

That is, until you are called into HR and informed that because your drug test came back positive, you are being terminated. You start to worry, you explain to your employer that you have a medical marijuana prescription and that your doctor told you to use it! You emphasize that you have never used marijuana during or before work, and had never used it before you had the prescription. It does not matter, your employer fires you anyway, and, with your terminated employment, goes your health insurance. You are terrified now because, without health insurance, you cannot afford to pay for cancer treatment out-of-pocket, and there is no way you can afford a private, independent health insurance plan.

As a last effort to support yourself, you reach out to the best employment attorney in the state, and ask them if there is anything they can do. Surely, there is no way you were fired in a just manner. After speaking with the attorney, you are devastated to find out that there is nothing they, or anyone, can do. You violated the company's drug and alcohol policy, and, as a private employer, they are free to terminate you at will. You return home, distraught, unemployed, uninsured, and out of options. This is not a hypothetical scenario, it is the story of Joseph Casias, who was using medically prescribed marijuana to cope with the side-effects of chemo, after being diagnosed with sinus cancer and a brain tumor. Casias was terminated on November 24, 2009, from Wal-Mart stores, after testing positive for marijuana during a drug test, and has lived on unemployment and state-sponsored healthcare since his termination.

Regrettably, this story is all too common. Medical marijuana patients regularly face employment discrimination for medical marijuana use, and it often costs these patients their livelihoods. Medical marijuana patients, going through some of the most difficult times in their lives, should not be further burdened by blatant employment discrimination for their treatment. However, due to the federal prohibition on mariyuana and inconsistent state medical marijuana laws, medical marijuana patients encounter employment discrimination for their medical marijuana use, typically in the form of discipline, discharge, and refusal to hire. This type of discrimination stems from a variety of sources, but originates with the federal government's classification of marijuana as a controlled substance. The federal legalization of marijuana would arguably solve the majority of problems faced by medical mar quana patients in the employment context. However, federal legalization would require major changes to American drug laws, which have been resisted by every Congress since 1937.

Therefore, to protect people like Joseph Casias, smaller-scale changes on both the state and local level should be made to account for the discrimination medical marijuana patients face. Smaller-scale changes on the state level should include amendments to state employment laws, disability laws, or medical marijuana laws that reduce the harm done by federal prohibition. On the local level, smaller-scale changes could include adjustments to company drug and alcohol policies, and restructuring of drug testing procedures.

This Note presents three claims. First, that medical marijuana patients are not provided adequate employment protections under federal or state law. Second, that medical mariyuana patients should be provided employment protections. And, third, that current employment-related drug testing procedures should be amended to account for medical marijuana patients.

Part I of this Note provides background and context on medical marijuana, federal and state employment and disability law, and drug testing procedures. Part II outlines the various issues medical maryuana patients face in the employment context, and concludes that federal and state laws are inadequate for providing medical marijuana patients with employment protections. Part III delineates why employment protections are necessary for medical marijuana patients, and suggests what legislation could provide these protections. Part IV explores amendments to current employment-related drug testing procedure as an alternative to government legislation.

Disciplines

Law

Download

Included in

Law Commons

Share

COinS