ACLU Sues Wal-Mart for Firing Medical Marijuana Patient

DETROIT, June 29, 2010— -- Joseph Casias, a cancer patient who was fired by Wal-Mart for using medical marijuana to cope with his pain is getting some big legal help from a national Constitutional rights organization. The American Civil Liberties Union and ACLU of Michigan along with a Michigan law firm have filed a lawsuit against Wal-Mart and the manager of the chain's Battle Creek, Mich., store for wrongfully firing Casias.

Casias, who is 30, was fired for a positive drug test even though he is legally registered to use marijuana under Michigan's medical marijuana law.

"Medical marijuana has had a life-changing positive effect for Joseph, but Wal-Mart made him pay a stiff and unfair price for his medicine," ACLU staff attorney Scott Michelman said in a statement. "No patient should be forced to choose between adequate pain relief and gainful employment, and no employer should be allowed to intrude upon private medical choices made by employees in consultation with their doctors."

Michigan is one of 14 states where medical marijuana is legal, but employers in the Wolverine state can and do terminate employees who fail drug tests. Wal-Mart policy, like the policy of other companies, indicates that in states such as Michigan which allow marijuana use for medical purposes, the store can still terminate an employee following a positive drug test. The law in Michigan says employers do not have to accommodate the ingestion of marijuana in the workplace or employees working while under the influence.

The news last November he'd been terminated was devastating for Casias who took great pride in his job, earning the honor of Associate of the Year.

"It hurts. It hurts because I care. I care a lot about the store. I always wanted to make sure I do well," he told ABC News back in March.

Casias started taking the medicine a year before then to cope with pain from sinus cancer and a brain tumor. He says the rare form of cancer causes him pain constantly and he almost died when he was first diagnosed.

Casias sprained his knee at work last November and underwent the routine drug test that follows all workplace injuries. Questioned about his positive test, Casias told management about his condition and presented a state card authorizing his marijuana use for medical purposes, but he was fired anyway. Casias says management told him Wal-Mart does not honor medical marijuana cards.

"I just can't believe that it has to be this way. I don't see why they have to fire me," he said.

"This is just an unfortunate situation all around," Wal-Mart spokesman Greg Rossiter told ABC News in March. "We're sympathetic to Mr. Casias' condition, but like other companies we have to consider the overall safety of our customers and our associates, including Mr. Casias when making a difficult decision like this."

Medical Marijuana Hazardous in Workplace?

Certainly using a mind-altering drug on the job is something that would trouble any employer, but Casias says he never used the marijuana before or during work. He was in severe pain regularly so it would make sense that the drug was detected given that it can take weeks for marijuana to leave the system.

Doctors say a number of medicines or combination of medicines, such as antihistamines, could pose a danger at the workplace. And medical marijuana, which is thought to be relatively safe, falls into the category of substances that could be hazardous to the workplace. Casias unloaded trucks for Wal-Mart.

"I'd be concerned from an occupational hazard standpoint," said Dr. Martin Makary, associate professor of Health Policy at Johns Hopkins University. "I think this individual could drop or mishandle or lose control of the box because of their impaired mind-altered judgment. The job would really need to require no judgment of any kind. No coordination, no technical judgment or no thinking skills in order to argue it would be safe in the workplace."

On the other hand, Makary says that if a person used medical marijuana or Cannabis on a Friday night and went to work on Sunday, they wouldn't be impaired on the job.

Would the situation have turned out differently if Casias had told Wal-Mart about his treatment? Casias says he thought the treatment was between him and his doctor. And why didn't Wal-Mart use its discretion to take into account the fact that someone who apparently was a pretty good worker, earning the honor of Associate of the Year in 2008, was taking the marijuana for medicinal purposes? The company, after all, did not point out any issues with his performance at the time of his termination.

Michigan attorney Michael Komorn, who has represented several clients in medical marijuana cases and does for the Michigan Medical Marijuana Association, says that Wal-Mart made a specific choice to single out Casias for exercising his free will in compliance with the law.

Wal-Mart Firing 'Uncompassionate'

"It's offensive. It's uncompassionate. The guy's got cancer and you fire him."

While Michigan law protects any employer's right to terminate for marijuana use, the law also states that a qualifying patient who has been issued and possesses a registry identification card shall not be subject to penalty in any manner, or denied any right or privilege or disciplinary action by a business for medical marijuana use.

Komorn believes citizens who use medical marijuana in Michigan and elsewhere encounter all kinds problems with law enforcement and mainstream society because of the stigma that society places on marijuana use.

"Wal-Mart, this great outlet, has embraced the stigma of marijuana," he said. "There's a transition phase that we're going through that involves people adjusting their view and reaction to marijuana."

Komorn says the Michigan statute covering medical marijuana is written in such a way that there is conflict. An employer may have existing contracts that say it can terminate the employee for marijuana use. In a landlord/tenant agreement, a landlord could say he doesn't allow marijuana on the premises. And, a patient who is operating a vehicle with marijuana in his system can still be convicted of driving under the influence.

Komorn had hoped the conflicts would be resolved through litigation, and he got his wish with the ACLU announcing Tuesday they had filed a law suit.

"In order to protect patients there has to be an evolution in thinking," he said.