Can Employers Legally Fire You for Medical Marijuana Use?

[Evo]

In the US, many states have "Employment at will" which means an employer can fire anyone, anytime, for any reason (except discrimination). The employee has the right to quit at anytime and for any reason.

Missouri is such a state.

The courts of Missouri follow an "Employment-at-Will" doctrine. This means that both the employee and employer can end the employment relationship at any time and for any reason, as long as it is not discrimination under the Civil Rights Act. Unless there is a written employment agreement, an employer may dictate or change the terms and conditions of employment. The employee can either agree to the terms and conditions, or refuse them and risk termination. The exact laws can be found in Chapter 290 RSMo and Regulations (Rules) under 8CSR 30, 4.010-050.

http://dolir.mo.gov/ls/faq/faq_general.htm

 

[Huckleberry]

What do you think a court verdict would be?
http://www.eeoc.gov/types/ada.html

Disability Discrimination​

the pros

Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA's nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules.

An individual with a disability is a person who:

Has a physical or mental impairment that substantially limits one or more major life activities;
Has a record of such an impairment; or
Is regarded as having such an impairment.

the cons

Drug and Alcohol Abuse
Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA's restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

I think all this guy should have to do is go to court and show his prescription. If the prescription is legal then his drug use was not illegal. This assumes the nature of his job would not be hampered by off-hours use of marijuana.

 

[Evo]

I think all this guy should have to do is go to court and show his prescription. If the prescription is legal then his drug use was not illegal. This assumes the nature of his job would not be hampered by off-hours use of marijuana.

The problem is that it's illegal under Federal Law and it's not discrimination based on disablity, there are legal medications he could take.

 

[Huckleberry]

Yes, but it is not illegal in the state where the employee was. (I think?) This document does not specify that the drugs be illegal by federal law, only that they be illegal. If he had a valid prescription for medicinal marijuana then he wasn't breaking any law in that state and this federal discrimination law should protect his rights.

This law overrides state and local governments. It's right in the first paragraph.

 

[Huckleberry]

This is the definition of Illegal used in the official document that has a link on the site I posted.

6) Illegal use of drugs. -

(A) In general. - The term ``illegal use of drugs'' means the use
of drugs, the possession or distribution of which is unlawful under the
Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term does not
include the use of a drug taken under supervision by a licensed health
care professional, or other uses authorized by the Controlled Substances
Act or other provisions of Federal law.

http://www.eeoc.gov/policy/ada.html

Note that it does not apply to drugs taken under the supervision of licensed health care professionals.

So what's the problem with California?

 

[Evo]

Yes, but it is not illegal in the state where the employee was. (I think?) This document does not specify that the drugs be illegal by federal law, only that they be illegal. If he had a valid prescription for medicinal marijuana then he wasn't breaking any law in that state and this federal discrimination law should protect his rights.

This law overrides state and local governments. It's right in the first paragraph.

As far as I know it's not legally prescribed, he claims his doctor recommended it. I can't search on the subject from work.

If you read the original article, it will fill you in.

http://www.bloomberg.com/apps/news?pid=20601087&sid=aIJ90qlEwzdg&refer=home

 

[drankin]

Right, I mean just fire away. If your black, your fired. . . gay, fired. . . Jewish, fired.

Regardless of reason, what a great idea

Regardless of reason! If some employers wants to hire gays only, why can't he? If an employer wants to hire blacks or Jews only, why the hell not? Who are you to tell him to hire people he doesn't want in his company? It is HIS company. I think its a great idea. *shrug*

-edit-

But, there are laws against outright discrimination for a reason. And those laws have their place. To me, if my employer doesn't like me for my race (which I've experienced), I really don't care. I can quit and work somewhere else. You won't find me in court suing anyone over it.

 

[Huckleberry]

Ok, I think I see the problem now. Even though, by the letter of the law, this fits the federal governments definition of disability discrimination, the federal government (Bush administration) does not like that states approve the use of marijuana. So while this law should protect this man's rights, since he hasn't done anything wrong by the law of his state, it won't because somebody in federal government is wearing their underwear too tight.

California State government is no better because they write a law to provide people with disabilities the right to use marijuana under some circumstances, but then they cannot enforce it when employers choose to fire these disabled people for its use because the employers are not criminally persecuting the employee.California is a 'right to work' state and can fire an employee for any reason that isn't discrimination, but technically they fired him for legal drug use used to medicate his disability, but not actually for being disabled. That's disingenious. That's California.

edit - they should sell California Law books as connect the dot puzzles and coloring books for children. Put those things to good use.

 

[Moonbear]

http://www.bloomberg.com/apps/news?pid=20601087&sid=aIJ90qlEwzdg&refer=home

What a strange situation. Employers can fire people for smoking cigs or drinking, but in the case of a prescribed medical treatment this seems rather odd. Of course this again gets back to the feds stepping on State's rights; ie. the justification was federal law.

I'm going to jump in without reading the full discussion, but...my view on this is that the problem really is that someone who is ill enough to NEED that sort of treatment has to work in the first place rather than being out on disability/sick leave. The same could be said of a number of legal prescription and non-prescription drugs. I'd treat it the same as someone taking a prescription narcotic...if they are in that much pain and need that strong of medication, they don't belong in the workplace at all. What sort of job could someone do with that type of medication? You can't give them a desk job, because they can't think clearly enough to make appropriate decisions, and you can't give them a physical job because their reactions are altered to be unsafe in such a job (not to mention that whatever is causing their pain probably also prevents them from doing a physical job). People shouldn't even be forced to go to work when they are on some cold medicines that make them too loopy to be anywhere but in bed.

So, if something is a temporary illness, take time off for sick leave, and if it's long-term, then there should be a disability program for them to be on to not be at work. The employer shouldn't have to be hindered by being required to hire someone whose medication hinders them from doing the job, especially when there is no way to make reasonable accomodation to permit them to do the job (as would be the case in jobs protected by the ADA).

 

[Saladsamurai]

Regardless of reason! If some employers wants to hire gays only, why can't he? If an employer wants to hire blacks or Jews only, why the hell not? Who are you to tell him to hire people he doesn't want in his company? It is HIS company. I think its a great idea. *shrug*

-edit-

But, there are laws against outright discrimination for a reason. And those laws have their place. To me, if my employer doesn't like me for my race (which I've experienced), I really don't care. I can quit and work somewhere else. You won't find me in court suing anyone over it.

That's right, shrug it off. It's a free country, right?

 

[drankin]

That's right, shrug it off. It's a free country, right?

Yes it is. Why the flippant attitude?

 

[denverdoc]

Don't believe it, and yet understand it. There are conditions such as iatrogenic treatment of cancer with intractable nausea, or loss of apppetite from Aids. There are few if any nausea related illnesses except maybe anxiety/marijuana withdrawal that could find medical evidence as a palliative treatment. Barking up the wrong tree here. I see addicts of all descriptions and this self-medication excuse has gained a lotta currency--usu for mental conditions. Hree IMHO its being extended in the guise of a physical one. Glaucoma maybe, nausea my belly hurts laughing. But if you think you need it ain't no substitute--on that I will swear!

 

[DrClapeyron]

If you chose not to sue, you have chosen a role unparticipatory regarding the issue of civil duty. Our society runs (here in America) off the ability to bring forth claim to a court of law settled by a judge. Property rights, contracts, divorce, marriage, wills, power of attorney could not exist if people did not bring forth their grivences as cases to be settled in court. You can do only a diservice by shrugging the world as though you are atlas, that is not how it works.

 

[mheslep]

If you chose not to sue, you have chosen a role unparticipatory regarding the issue of civil duty.

Do you really assert that it is always a civil duty to sue?

 

[Beeza]

I'm going to jump in without reading the full discussion, but...my view on this is that the problem really is that someone who is ill enough to NEED that sort of treatment has to work in the first place rather than being out on disability/sick leave. The same could be said of a number of legal prescription and non-prescription drugs. I'd treat it the same as someone taking a prescription narcotic...if they are in that much pain and need that strong of medication, they don't belong in the workplace at all. What sort of job could someone do with that type of medication? You can't give them a desk job, because they can't think clearly enough to make appropriate decisions, and you can't give them a physical job because their reactions are altered to be unsafe in such a job (not to mention that whatever is causing their pain probably also prevents them from doing a physical job). People shouldn't even be forced to go to work when they are on some cold medicines that make them too loopy to be anywhere but in bed.

So, if something is a temporary illness, take time off for sick leave, and if it's long-term, then there should be a disability program for them to be on to not be at work. The employer shouldn't have to be hindered by being required to hire someone whose medication hinders them from doing the job, especially when there is no way to make reasonable accomodation to permit them to do the job (as would be the case in jobs protected by the ADA).

I'm not really looking to stir-up any trouble, but they can indeed perform physical labor. I've been working construction a long time, and atleast 60% of every construction worker I've ever met gets high every day and continues to work perfectly fine-- even at extreme heights.

 

[mheslep]

I'm not really looking to stir-up any trouble, but they can indeed perform physical labor. I've been working construction a long time, and at least 60% of every construction worker I've ever met gets high every day and continues to work perfectly fine-- even at extreme heights.

I worked a lot of construction too and everybody got high after work, never before. I don't buy your assertion.

 

[drankin]

If you chose not to sue, you have chosen a role unparticipatory regarding the issue of civil duty. Our society runs (here in America) off the ability to bring forth claim to a court of law settled by a judge. Property rights, contracts, divorce, marriage, wills, power of attorney could not exist if people did not bring forth their grivences as cases to be settled in court. You can do only a diservice by shrugging the world as though you are atlas, that is not how it works.

Are you suggesting one should litigate themselves into the ideal world? Sorry, that's NOT how it works on my "atlas". It's certainly isn't my civic duty to sue anyone that doesn't like the color of my skin. Personally, I respect everyones right to have their opinion no matter how caustic it may seem.

 

[Beeza]

I worked a lot of construction too and everybody got high after work, never before. I don't buy your assertion.

Don't buy what? Theres nothing to dispute. It's fact as far as every construction company I have ever worked with all over New England and even a bit in Michigan. I'm sure there are exceptions, but I'm giving my input based on my experience.

 

[chemisttree]

Are you saying that their work didn't appear to suffer as opposed to 'you couldn't tell any difference' in their work? I've always wondered why all of our jobs were migrating overseas and down south...

 

[mheslep]

Don't buy what? Theres nothing to dispute. It's fact as far as every construction company I have ever worked with all over New England and even a bit in Michigan. I'm sure there are exceptions, but I'm giving my input based on my experience.

Fact? The only fact on the table is that you posted some words on the internet. How do you actually know 1/2 the crew was high? Blood test 'em? On my crews if you were working dangerous gear, scaffling, whatever where other guys were depending on you, and you showed up high then you were very likely to get you a*s kicked and then fired.

 

[mheslep]

Are you saying that their work didn't appear to suffer as opposed to 'you couldn't tell any difference' in their work? I've always wondered why all of our jobs were migrating overseas and down south...

 

[Beeza]

Fact? The only fact on the table is that you posted some words on the internet. How do you actually know 1/2 the crew was high? Blood test 'em? On my crews if you were working dangerous gear, scaffling, whatever where other guys were depending on you, and you showed up high then you were very likely to get you a*s kicked and then fired.

How do I know? Because they would smoke in the trucks, on the roof, or take a ride for lunch. If you work right next to someone all day, you tend to get to know them very well--including their bad habbits.

I'll also replace the word fact with let's say observation. I observed roughly that many people out of all crews I've worked for having those habbits.

 

[Beeza]

Are you saying that their work didn't appear to suffer as opposed to 'you couldn't tell any difference' in their work? I've always wondered why all of our jobs were migrating overseas and down south...

Construction jobs going overseas? More like illegal immigrants working for 50$ a day-- or homeowners hiring companies composed entirely of illegals.

 

[ShawnD]

I'm not really looking to stir-up any trouble, but they can indeed perform physical labor. I've been working construction a long time, and atleast 60% of every construction worker I've ever met gets high every day and continues to work perfectly fine-- even at extreme heights.

I worked construction one summer and I can honestly say at least half of the crew had very serious drug problems. If anything, their drug problems were what made them capable of working 12 hours per day, 6 days per week. Normal people get tired, sore, and hungry. Some of those guys would go all day without food. They would smoke nonstop and drink coffee at lunch time, but I would never see them eat anything.

Although this article is a bit upsetting, it doesn't seem that odd. Medication has very strong implications, so your choice of hiring or firing may not be related to the drugs themselves. Example: I would never hire somebody with bipolar disorder since most of them stop treatment in a very short time. I would not hire somebody who was taking illegal drugs because they might end up stealing things. I would not hire somebody with bad credit because it shows that they're completely incapable of basic adding and subtracting of numbers.
What is the implication behind pot? From personal experience I can tell you that a lot of potheads really are the lazy people you see on TV. Sure you can smoke once a week and be fine, but what if my employee is smoking 3 times per day? Will he still be fine, or will he become another loser who fits the stereotype?

 

[denverdoc]

I worked construction one summer and I can honestly say at least half of the crew had very serious drug problems. If anything, their drug problems were what made them capable of working 12 hours per day, 6 days per week. Normal people get tired, sore, and hungry. Some of those guys would go all day without food. They would smoke nonstop and drink coffee at lunch time, but I would never see them eat anything.

Although this article is a bit upsetting, it doesn't seem that odd. Medication has very strong implications, so your choice of hiring or firing may not be related to the drugs themselves. Example: I would never hire somebody with bipolar disorder since most of them stop treatment in a very short time. I would not hire somebody who was taking illegal drugs because they might end up stealing things. I would not hire somebody with bad credit because it shows that they're completely incapable of basic adding and subtracting of numbers.
What is the implication behind pot? From personal experience I can tell you that a lot of potheads really are the lazy people you see on TV. Sure you can smoke once a week and be fine, but what if my employee is smoking 3 times per day? Will he still be fine, or will he become another loser who fits the stereotype?

Shawn,

I believe you are seriously misinformed about bipolar illness. Not just you, but an opinion that runs the width and breadth of our society. There are many bipolar patients in various stages of denial/acceptance just as with any other illness or even strong personality trait. When I was married I had a bossy mother-in-law. Now I grant you most men see surrogate moms in this fashion and so their is undoubtedly a built in bias. But she really was, you got to trust me. She was blind to it.

In all honesty I have seen a fair number of patients just as you describe--a revolving hospital door with charts that required boxes. But for every one of those, I know ten patients who are doing anywhere from so-so to spectacular: They keep their jobs, they make/keep appts, they prompt their pharmacy for refills suggesting at least tight compliance, and in some cases thru reading and internet review, know more about their illness than I.

 

[Huckleberry]

I have an uncle who was a truck driver. While driving a truck in New York he hit a large pothole on the highway. The truck he was in had faulty shocks. So when he hit this pothole his chair slammed him down and he burst 2 spinal discs. He had surgery to fuse those vertebrae together and is now disabled. He has been prescribed morphine for the chronic pain received from his injury.

Here's what bothers me about this situation. Firstly, the trucking company and the State of New York kept the law suit wrapped up in court for years and eventually it was dismissed due to some supposed error by my uncle's lawyer. I smell a rat somewhere in there. Secondly, my uncle is not an educated man and has performed physical labor his entire life. He can't work any more and must rely on his income from disability. There are people that check on him periodically to make sure that he isn't working, because if he does he will lose his disability. So, as a middle-aged man, my uncle's injury limited any potential for an improvement in his income and lifestyle.

If someone is capable of working and desires to do so then I think it would be wrong to exclude them from the work force based on a disability. They can either perform the job to the requirements, or they cannot. Anything else weighed into that equation is just discrimination. I'm talking about people with disabilities here, not addicts or sloths. There is a difference.

 

[BobG]

Fact? The only fact on the table is that you posted some words on the internet. How do you actually know 1/2 the crew was high? Blood test 'em? On my crews if you were working dangerous gear, scaffling, whatever where other guys were depending on you, and you showed up high then you were very likely to get you a*s kicked and then fired.

I only worked construction a few years and more than 25 years ago, so I can't comment on what construction is like today, but my experiences were more like mheslep's.

I'm pretty sure some of the workers used marijuana and nearly 100% probably drank fairly often. But I would have been shocked to see someone drunk or high on the job (except maybe roofers - I doubted their sanity even on a good day, so I wouldn't be surprised by anything they did). Well drillers (home water) were probably the only exception. They had a reputation for being alcoholics, but I imagine the reputation was overstated even for them since I know the younger crews weren't drinking.

I was a mason's assistant and I couldn't imagine working that job under medication or while drunk. Working on the scaffold was hard enough even sober since I had a fear of heights. I once dropped a cement mixer on my finger and I was scared to take the pain medication during the day. It seemed saner to endure the pain for a few since it usually quit hurting bad enough to notice much after working for awhile.

 

[ShawnD]

Shawn,

I believe you are seriously misinformed about bipolar illness. Not just you, but an opinion that runs the width and breadth of our society. There are many bipolar patients in various stages of denial/acceptance just as with any other illness or even strong personality trait. When I was married I had a bossy mother-in-law. Now I grant you most men see surrogate moms in this fashion and so their is undoubtedly a built in bias. But she really was, you got to trust me. She was blind to it.

In all honesty I have seen a fair number of patients just as you describe--a revolving hospital door with charts that required boxes. But for every one of those, I know ten patients who are doing anywhere from so-so to spectacular: They keep their jobs, they make/keep appts, they prompt their pharmacy for refills suggesting at least tight compliance, and in some cases thru reading and internet review, know more about their illness than I.

http://www.ncbi.nlm.nih.gov/pubmed/9133756?dopt=Abstract

Studies of compliance with pharmacologic treatment in patients with bipolar disorder have primarily involved outpatients receiving lithium. To date, very little data addresses the rates of noncompliance in patients with bipolar disorder treated with other available mood stabilizers (e.g. divalproex, carbamazepine). One hundred and forty patients initially hospitalized for a bipolar disorder, manic or mixed episode, were evaluated prospectively over 1 year to assess their compliance with pharmacotherapy. Compliance was assessed by a clinician-administered questionnaire, using information from the patient, treaters, and significant others. Seventy-one patients (51%) were partially or totally noncompliant with pharmacologic treatment during the 1-year followup period. Noncompliance was significantly associated with the presence of a comorbid substance use disorder. Denial of need was the most common reason cited for noncompliance. Compliance was associated with being male and Caucasian and with treatment with combined lithium and divalproex or with this combination and an antipsychotic. Noncompliance with pharmacotherapy remains a substantial problem in the treatment of patients with bipolar disorder.

So basically the ones that are diagnosed by a professional as having bipolar disorder are as likely to not be treated as they are to be treated. Ticking time bomb.

 

[Moonbear]

I'm pretty sure some of the workers used marijuana and nearly 100% probably drank fairly often. But I would have been shocked to see someone drunk or high on the job (except maybe roofers - I doubted their sanity even on a good day, so I wouldn't be surprised by anything they did).

My step-brother was a roofer...until he fell off a roof and injured his back so badly he can't even walk many days (compression of the sciatic nerve...his one leg will completely go out from under him). His working days are over for that, but unfortunately, he did so many "under the table" jobs that his disability benefits are next to nothing. I keep looking out for clinical trials for him, because it's the only way he'll ever be able to get proper treatment, since he can't afford the surgery he really needs.

Anyway, he fell without being under the influence, but MANY of the guys he worked with would show up high or drunk, or would become drunk on the job. They also had a very high accident rate. He's seen some gruesome things on the job...like the guy who was drunk and fell off the roof into the boiling tar bucket thing. I only hope the fall killed him before the burning tar did.

These jobs are dangerous on a good day, and working them under the influence only makes them more dangerous. We need people to do those jobs though, so why should those willing to do the job only get a pittance in disability payments to live off of when they are injured on the job? And why should we expect them to return to work high on painkillers just to support their families when we know they shouldn't be doing that job when high?

I'm all for job retraining. If someone can still do SOME job well, even while taking prescription or non-prescription drugs for their pain, excellent, I'm sure they'd prefer that too. But, if those drugs, or their injury, prevents them from doing any job well, then they should qualify for sufficient disability benefits to support themselves and their families. There should also be some option for partial disability. For example, someone who can work part-time but not full-time should be able to do so and receive disability for the rest of that time. Some people can do a desk job for a half day, but if they have to sit there any longer, the pain starts and they can't work the full day and need to lie down. People with disabilities crave the dignity of earning their living, so shouldn't it be possible to let them work as much as they are able to work without losing all their benefits?

 

[BobG]

...like the guy who was drunk and fell off the roof into the boiling tar bucket thing. I only hope the fall killed him before the burning tar did...

Might be a nice wish but, usually, the fall doesn't kill you - the landing does.

If it was a really tall house and he landed right, he might have broken his neck on the bottom, but that was probably a very painful death.