I’ve been thinking about this, Mr. Hand. If I’m here and you’re here, doesn’t that make it our time? Certainly, there’s nothing wrong with a little feast on our time.”
Jeff Spicoli – Fast Times at Ridgemont High.
It took longer to find a quote about marihuana for this article, than it did to research the state of the law. Spicoli, the lovable stoner from Fast Times at Ridgemont High, was the best I could come up with. And, he makes a valid point. If I’m at work and so is my boss, doesn’t that make it our time and not just my boss’ time? Why do I ask? Because the issue of medical marihuana use is not as clear as it once was.
We are going to talk about the law in Michigan. And we do that for two reasons. First, I practice in Michigan. Second, Michigan is on the verge of having a whole new flood of legal medical marihuana dispensaries. Now, we are not going to talk about dispensaries and licensing, and any of that other stuff; we are going to talk about medical marihuana and employment.
The state’s statute is titled The Michigan Medical Marihuana Act (this is the state spelling, so we are going to use this spelling in the article).Among other things, the Act “provide[s] protections for the medical use of marihuana” when recommended by a physician for “debilitating medical conditions.” Section 4 specifically states: “A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business . . . for the medical use of marihuana . . . ”
That statement seems pretty clear. You can’t fire someone for using medical marihuana; end of story, right? Not so fast! Section 7 of the Act states: “Nothing in this act shall be construed to require . . . An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.” So how is this going to work? Well, the courts are going to decide, and they have.
In Casias v. Wal-Mart Stores, Inc., (which I wrote about here), the court held that an employer could fire an employee who tested positive for medical marihuana even if that employee had a card. Judge Jonker stated: “The fundamental problem with Plaintiff’s case is that the MMMA does not regulate private employment. Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state.” Judge Jonker went on to note that the employee’s public policy argument would “confer on medical marihuana patients, rights, to this point conferred only on a select group of people based on immutable characteristics like race, sex and religion.” Judge Jonker also stated: “Further, the MMMA does not indicate a general policy on behalf of the State of Michigan to create a special class of civil protections for medical marihuana users.” The case was appealed and the Sixth Circuit agreed: “We agree with the district court and find that the MMMA does not impose restrictions on private employers, such as Wal-Mart.”
You may be thinking, “Steve, why are we having this conversation? Doesn’t that settle it? I can fire my employees if they test positive for marihuana. Isn’t that what the court decided?”
Yes, it does, sort of. That is the law in Michigan right now. But, there are a couple of things I want you to be aware of. First, other states are going in different directions.
On May 3, 2017, the Superior Court in the State of Rhode Island broke with what most other courts, including Judge Jonker and the 6th Circuit, have done. The Superior Court found that an employer’s enforcement of a neutral drug testing policy to deny employment to an applicant was a violation of the Rhode Island state law. Before I start with this, I just have to point out one really cool thing. The judge started the case with this quote:
“I get high with a little help from my friends.”
—The Beatles, 1967
Come on, you have to love a judge that starts his or her opinion with a quote from the Beatles.
Anyway, Plaintiff Christine Callaghan brought an action against Defendants Darlington Fabrics Corporation alleging employment discrimination with respect to hiring for an internship position because she held a medical marihuana card. Ms. Callaghan was a master’s student. During her interview Ms. Callaghan disclosed that she held a medical marihuana card, and the interview concluded shortly thereafter. A few days later, the company HR rep and another employee had a conference call with Ms. Callaghan and asked her if she was currently using medical marihuana. She said yes. The HR rep responded by informing Ms. Callaghan that a positive test would “prevent the Company from hiring her.” Ms. Callaghan told the HR rep that she was allergic to many other painkillers, and that she would neither use marihuana in or bring it to the workplace. That did not seem to matter to the Company.
Rhode Island Law states: “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” Sound familiar? The Michigan law states: “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, including but not limited to . . . disciplinary action by a business . . . for the medical use of marihuana . . . .”
The Rhode Island Court then pointed out, “also relevant to this inquiry. Section 21-28.6-7(b)(2) states that ‘[n]othing in this chapter shall be construed to require . . . [a]n employer to accommodate the medical use of marihuana in any workplace.’ ” Again, sounds a lot like Michigan. Remember, “Nothing in this act shall be construed to require . . . An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”
But the Rhode Island Court did not agree with Judge Jonker and went the other way. First, it implied a private right of action into the Rhode Island statute that allowed Ms. Callaghan to sue in the first place, and then the Court held: “Plaintiff was denied the opportunity to apply for a job with Defendants because she believed she could not pass the pre-employment drug test. Plaintiff did inform Defendants that she was a medical marihuana cardholder and that she would obey state law and not bring marihuana into the workplace. Defendants do not contest that they denied her employment based on the fact that she could not pass the drug screening. Therefore, Defendants have violated the [] Act. As a result, the Court grants Plaintiff’s motion for summary judgment and correspondingly denies Defendants’ motion.”
Read the case here. Wow!
But I’m sure you are wondering, yet again, what does it have to do with Michigan? Well, let’s take a look at Braska v Challenge Manufacturinghere.
Federal Judge Jonker and the 6th Circuit federal court’s decision regarding state law are not binding on the state courts. So what does Braska have to do with this? Braska involved three employees who were terminated for testing positive for marihuana and it was up to the Court to decide whether an employee who possesses a registration identification card under the Michigan Act is disqualified from receiving unemployment benefits, after the employee has been terminated for failing to pass a drug test. Spoiler alert, the employees won and received the benefits.
The Braska Court started with the proposition that the Michigan unemployment statute disqualifies people for benefits for “testing positive on a drug test, if the test was administered in a nondiscriminatory manner.” Isn’t that what happened here? The employees tested positive on a drug test administered in a nondiscriminatory manner or at least that is what the state argued.
So what’s up with that? How does an employer have the right to fire the employee and, on its face, the language of the unemployment statute disqualifies them from getting benefits, but the employee can still get unemployment compensation?
Here is what the Michigan Court of Appeals said. First, the court noted that the MMMA has a broad preemption provision which says:
. . . ‘[a]ll other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.’
So that disqualifier in the unemployment statute does not matter if the employee has a card and is not otherwise violating the MMMA by, for example, “being under the influence at work” or “using at work.” Now, using at work, that is easy. But, being under the influence? How do we know that? Most drug testing policies state any positive test is under the influence and we don’t have cut off that tell us when someone is under the influence lines like we do with alcohol. So, what do we do? Good question. There is just no answer to that question yet.
Second, the court noted that the MMMA says that people with cards who are using marihuana in accordance with the MMMA:
. . . ‘shall not’ . . . be denied any ‘right’ or ‘privilege,’ ‘including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau . . .
And the court held:
Applying this definition to the present case, we conclude that denial of unemployment benefits under § 29(1)(m) constitutes a ‘penalty’ under the MMMA that was imposed upon claimants for their medical use of marihuana.
So, the summary is that the MMMA trumps the unemployment act and denying unemployment benefits just because of a positive test for someone who legally has a card is a penalty imposed by the state in violation of the MMMA.
But what about the Casias case? Well, the court dealt with that too. First, it basically said Casias is not binding on the Michigan Court of Appeals because this is a question of Michigan law and Casias was a federal case. “The Casias decision is not binding precedent on this Court. (Noting that, “[o]n questions of state law, Michigan courts are not bound by foreign authority.”)" Then the court stated:
Moreover, unlike in Casias, in this case, we are not presented with the issue of whether the MMMA’s immunity clause applies in cases involving action solely by private employers. The issue raised in this case is not whether the employers violated the MMMA because they terminated claimants. The issue is whether, in denying unemployment benefits, the MCAC—a state actor—imposed a penalty upon claimants that ran afoul of the MMMA’s broad immunity clause. When an individual is denied unemployment benefits, the employer’s conduct is not at issue, but rather, the denial involves state action. See Vander Laan v Mulder, 178 Mich App 172, 176; 443 NW2d 491 (1989).
Ultimately, the Braska Court decided that determining who gets or does not get unemployment is up to the state and not the employer, and that makes Casias different.
What does all of this mean? Well, for now, those of us who work in Michigan can still fire an employee or even chose not to hire an applicant if the applicant fails a drug test, even if they have a medical marihuana card. I say for now, because it won’t be long before the Michigan courts are asked to answer this question. And, it is not altogether clear that they will follow the federal court’s logic. Now that Rhode Island has gone the other direction, it won’t be long before other states follow suit. Unless you can prove the employee either used and worked under the influence of marihuana, or is currently using marihuana, (and how do you do that?) if you fire them, there is a chance they could receive unemployment.
We remain committed to informing you of the latest developments in the courts and with legislature. In the meantime, if you are an employer dealing with these issues and if you have questions, give us a call.
