By Duke London
Retail giant Kohl’s may have a hefty lawsuit on their hands after wrongfully firing an employee for failing a drug test.
Justin Shepherd, a former shift supervisor at the big box department store, was fired in 2014 after testing positive for marijuana. His cannabis use came to light after an injury on the job, when the company initially suspended Shepherd for three days before subsequently terminating his employment.
The problem for Kohl’s is Shepherd’s protected status as a medical marijuana cardholder, though he’s not protected by who you may think. Back in 2012, Kohl’s made an amendment to their personnel policies which included a section about medical marijuana. According to Judge Dale A. Drozd, who presided over the case (Shepherd v. Kohl’s Dep’t Stores, Inc., 2016 BL 249936, E.D. Cal., No. 1:14-cv-01901, 8/2/16), “Kohl’s policy now provides that workers in certain states, including California, who possess valid recommendations for medical marijuana use won’t be discriminated against in termination and other employment decisions.” Shepherd received his doctor’s recommendation in 2011.
By Shepherd’s account, he was diagnosed with acute and chronic anxiety five years ago and received his medical marijuana prescription. He specifically stayed employed with Kohl’s because of the company’s stance on medical marijuana. The company maintained on Shepherd’s termination papers that he was under the influence of marijuana while at work, which the company does not allow. Shepherd, however, denies that claim and insists that he uses a personal abstinence policy in the days leading up to his next shift at work. Shepherd also submitted evidence showing that THC metabolites can stay present in urine for up to thirty days. Because the psychoactive component of marijuana can stay in your system for an extended period of time, a simple urine test alone couldn’t provide Kohl’s with substantial enough evidence that Shepherd was high while working.
When Justin pleaded with Kohl’s Human Resource Department, explaining that he hadn’t been under the influence at work, the HR Director allegedly told him he should have chosen another form of medication. Because of the unfounded statements on his pink slip and the alleged statements made to Justin about a medical joice made by Justin and a licensed physician, Kohl’s may now be in danger of a defamation lawsuit. The company could be found at fault for tarnishing Shepherd’s name and reputation recklessly in the process of firing him.
We will update you as the case progresses further.
