People Are Getting Fired for Medical Marijuana in States Where It's Legal...and Many Judges Are Siding with the Employers

A recent case in California is not an outlier.

By Michael Arria

Photo Credit: Shutterstock.com/Matthew Benoit

Justin Shepherd, a former employee at a Kohl's in Calfornia, is suing the department store chain for wrongful termination. Shepherd says he worked at Kohl's for years before he was diagnosed with acute and chronic anxiety. Shepherd received a recommendation for medical marijuana from his doctor. Shepherd didn't notify the company that he had started to use it for his illness, but in 2012 Kohl's its personnel policies to include exceptions to its drug testing for employees in certain states, like California.

According to the complaint, Shepherd was injured during work and a drug test revealed traces of marijuana metabolites. He provided a copy of his doctor's recommendation to Kohl's, said he only used the drug while off-duty and explained how traces of the substance can remain in one's system for quite some time. Nonetheless, Shepherd says he was fired and told "should have chosen a different medication."

A federal judge recently determined that Shepherd's lawsuit against Kohl's can proceed, but the track record of such cases might surprise you. Starting with California in 1996, 25 states have legalized medical marijuana or effectively decriminalized it. However, workers terminated over it often find no justice in the court system.

In 2015, Brandon Coates, a former telephone customer service representative in Colorado, tried to sue the direct-broadcast satellite company Dish Networks after he was fired. Coates is a quadriplegic and legally obtained medical marijuana license to treat his muscle spasms. The company let him go after a drug test came back positive for THC.

Colorado has allowed the use of medical marijuana since 2000, but Coates' complaint was rejected. The court determined that, even if Coates' marijuana use was legal in the state, it was still illegal on a federal level. Effectively, employers are allowed to enforce zero-tolerance drug policies without technically violating any of Colorado's statutes.

A similar case came to a close earlier this year in Massachusetts, where medical marijuana has been legal since 2012. Cristina Barbuto was fired from her job at Advantage Sales and Marketing after just one day when a drug test came back with positive traces of marijuana. Barbuto suffers from Crohn’s disease and has a prescription to use marijuana to help ease the pain of flare ups. Barbuto says, much like Shepherd, she told her employer that she never smoked during work, but she was told that the company abided by federal law, not the specific rules of Massachusetts.

Barbuto launched five employment-based claims against Advantage Sales and Marketing, but they were all dismissed by a Suffolk Superior Court judge who ruled that the company hadn't discriminated against Barbuto or violated any public policy by firing her.

Medical marijuana has been legal in Washington since 1998, but that didn't stop a Safeway from firing an employee after he tested positive for the substance in 2015, despite holding a valid prescription for the substance. The fired employee sued and argued, among other things, that he was being treated more harshly than workers who had actually shown up at the job drunk, but a judge dismissed all of his claims and ruled that Washington law couldn't change the drug policies of a company.

So, what has to happen for a fired employee to win such a case? Well, it's complicated. A recent interview with Business News Daily interview with Dr. Todd Simo, chief medical officer at employment screening company HireRight, provides some insight into the current employer perspective. Asked about the business concerns of marijuana use, Simo explained:

Depending on what state they're in, the rules for employment are vastly different. If [they're] in Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York or Pennsylvania … the employer should do some due diligence in regards to accommodating [an employee who uses medical marijuana].

You can terminate them if they show up impaired to work … but you can't arbitrarily say they tested positive and then terminate them or deny them employment. The rest of the 24 states [with medical marijuana programs] and D.C. basically fall into two categories: either there's case law that says the regulation allows employers to not hire or terminate for cause due to a positive drug screening; or the regulations are essentially silent and there's no mandated accommodation in those states.

So, the question for employers is, do you accommodate [marijuana users] as a standard practice or do you do due diligence and decide in which cases you have to accommodate? The employers we speak to split about 50/50. You really have to know what the rules are for accommodation where you're operating; otherwise, you might end up with a wrongful termination case on your hands.

But there's a pretty good chance it will get dismissed.