The United States Court of Appeals for the Sixth Circuit ruled in Casias v. Wal-Mart Stores, that the Michigan Medical Marijuana Act ("MMMA") does not regulate private employment and, therefore, did not protect Joseph Casias, a Wal-Mart worker authorized to use marijuana for medical reasons, from being fired after he failed a drug test.

Employers and the courts continue to wrestle with issues involving whether employers must accommodate medical marijuana use by their employees. On one hand, marijuana use is illegal under the federal Controlled Substances Act ("CSA") and, therefore, does not need to be accommodated under the federal Americans with Disabilities Act ("ADA"). However, 17 states currently have legalized some form or another of medical marijuana use: Alaska (1998), Arizona (2010), California (1996), Colorado (2000), Connecticut (2012), Delaware (2011), Hawaii (2000), Maine (1999), Michigan (2008), Montana (2004), Nevada (2000), New Jersey (2010), New Mexico (2007), Oregon (1998), Rhode Island (2006), Vermont (2004), Washington (1998) as well as the District of Columbia (2010). The language of each state’s law can differ, and the courts therefore interpret these state law issues on a case-by-case basis. The Michigan statute is the most recent one to come under judicial review. Here, is the background of that case and how the Sixth Circuit came to the conclusion it did.

In 2008, Michigan voters enacted the MMMA by referendum to provide protection for the medical use of marijuana. It allows only a “qualifying patient” or a “primary caregiver” to whom the state has issued a registry card to use or administer medical marijuana and prohibits, in part, “disciplinary action by a business or occupational or professional licensing board or bureau” against a person to whom the state has issued a registry card for the use or administration of medical marijuana. The key word in the statute for purposes of the Casias case is "business" and here’s why.

Casias started working at Wal-Mart in 2004 as an inventory control manager. He was later diagnosed with sinus cancer and an inoperable brain tumor. Due to his ongoing head and neck pain, he received a medical marijuana registry card and began using marijuana to manage his pain in the summer of 2009. Later that same year, Casias injured his knee at work, went to the hospital and was subjected to a standard drug test pursuant to Wal-Mart’s policy. Prior to the test, Casias showed his card to the testing staff. Well, as you probably guessed, Casias tested positive for marijuana. He showed his shift manager his registry card, and informed his manager that he never consumed marijuana while at work or came to work high. Nevertheless, Casias was fired for failing his drug test.

Casias sued Wal-Mart for wrongful discharge for violating the MMMA. The U.S. District Court for the Western District of Michigan dismissed Casias’ lawsuit finding that the word “business” in the statute does not regulate private employment actions and that the MMMA "contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses."

The Sixth Circuit agreed and held that the MMMA prohibits “disciplinary action by a business or occupational or professional licensing board or bureau” against a “qualifying patient.” Focusing on the key term "business," Casias argued that although the MMMA does not expressly refer to employment, the term “business," as used in the MMMA, was independent and expanded the MMMA’s protections to private employers. In other words, Casias argued that Wal-Mart was a "business" and thus fell within the MMMA prohibitions which precluded “disciplinary action by a business or occupational or professional licensing board or bureau” against a person with a medical marijuana registry card.

Wal-Mart countered, arguing that the term "business" modified the phrase “licensing board or bureau,” and that it did not extend the MMMA’s protections.

The Sixth Circuit agreed with Wal-Mart and expressly rejected Casias’ proposed interpretation of the MMMA, which the Court found could prevent any employer in the state from disciplining a qualified patient who uses marijuana under the MMMA. The Sixth Circuit, siding with Wal-Mart, opted not to read the term “business” independently. Rather, it concluded that the word “business,” as used in the MMMA, modified the phrase “licensing board or bureau,” and that the MMMA “is simply asserting that a ‘qualifying patient’ is not to be penalized or disciplined by a ‘business or occupational or professional licensing board or bureau’ for his medical use of marijuana.” Therefore, because the term "business" merely described or qualified the type of “licensing board or bureau"; it did not refer to employment:

Based on a plain reading of the statute, the term "business" is not a stand-alone term as Plaintiff alleges, but rather the word "business" describes or qualifies the type of ‘licensing board or bureau" …. "Read in context, and taking into consideration the natural placement of words and phrases in relation to one another, and the proximity of the words used to describe the kind of licensing board or bureau referred to by the statute, it is clear that the statute uses the word ‘business’ to refer to a ‘business’ licensing board or bureau, just as it refers to an ‘occupational’ or ‘professional’ licensing board or bureau. 

The Court further explained that adopting Casias’ argument would create an entirely new protected employee class in Michigan and "mark a radical departure from the general rule of at-will employment in Michigan." Because the case was one involving statutory interpretation, the Court highlighted the importance of carefully crafting groundbreaking legislation like the MMMA, and held that the MMMA does not govern private employment actions. The Court went one and noted that other states including California, Montana, and Washington had also held that their states’ similar medical marijuana laws do not govern private employment actions.


Continue Reading It’s High Times for Employers: The Sixth Circuit Holds Michigan Employers Can Say Nope to Dope

On July 7 and 19, 2011, the NLRB’s Office of the General Counsel issued a series of three advice memoranda recommending the dismissal of unfair labor practice charges filed by employees who were disciplined for comments made on Facebook. In each of these charges, the employee alleged that their discipline violated Section 8(a)(1) of the National Labor Relations Act, but in each the NLRB’s General Counsel’s Office concluded that there was insufficient evidence that the employee engaged in concerted activity.


Continue Reading NLRB General Counsel Recommends Dismissal of Three Charges Contesting Discipline for Facebook Comments, Finding No Concerted Activity

On Tuesday, the U.S. Supreme Court heard oral argument on Wal-Mart’s appeal of the Ninth Circuit’s en banc decision upholding the certification of a class action gender discrimination lawsuit in Dukes v. Wal-Mart Stores, Inc. As noted by a number of commentators (among them The Wall Street Journal, Forbes, The Christian Science Monitor, and CNN), the tone of the Court’s questioning indicates that the Court is likely to rule in Wal-Mart’s favor.

This appeal stemmed from a federal court’s certification of a nationwide class of female employees of Wal-Mart who were allegedly subjected to discriminatory pay and promotion policies. The class seeks injunctive relief and money damages (back pay) for all women employed since December 1998 in positions ranging from entry-level hourly employees to salaried managers. The class certified in 2004 included 1.5 million women; it currently is estimated to include 3 million women. The district court and Ninth Circuit certified the class after concluding that statistics and sociological expert testimony could allow Plaintiffs to show that Wal-Mart’s culture, when combined with its decentralized decision-making structure, resulted in discrimination against Wal-Mart’s female employees. Those courts approved class certification despite (1) Wal-Mart’s written policy of anti-discrimination, (2) evidence that there was no gender-based pay disparity at 90% of Wal-Mart’s stores, (3) an admission by plaintiff’s expert that he could not say whether discrimination was happening .05% or 95% of the time, and (4) a class that included at least 544 female store managers who would have been both victim and discriminator, under the plaintiffs’ theory.


Continue Reading A Skeptical U.S. Supreme Court Vigorously Questions Certification of a Mammoth Sex-Discrimination Class Action Lawsuit

In an unusual procedural move, a Ninth Circuit panel issued a revised opinion and rejected—for the second time—Wal-Mart’s request to overrule a lower court decision granting class action status to a lawsuit by six women representing a class of more than 1.5 million female workers. Dukes v. Wal-Mart, Inc., Case Nos. 04-16688 and 04-16720, 2007 U.S. App. LEXIS 28551 (9th Cir. Dec. 11, 2007). The class includes all female workers—from part-time, entry-level hourly employees to full-time, salaried managers—at Wal-Mart stores from December 1998 to the present “who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions, policies and practices.” The lawsuit alleges that female employees were paid less than men and given fewer promotions. If the case proceeds, it will be the largest sex discrimination case in U.S. history. The revised opinion addresses some of the criticisms directed toward the earlier opinion and changes some of the reasoning, though not the result, of the court’s earlier decision.
Continue Reading Ninth Circuit Panel Again Upholds Granting of Class Action Status to Wal-Mart Female Workers; Wal-Mart Again Petitions For En Banc Review