248-409-1900 dburke@mi-worklaw.com

By Dan Cohen – 11/4/14

          On October 23, 2014, the Michigan Court of Appeals ruled that Michigan’s Medical Marijuana Act (“MMMA”) preempts the misconduct provision of the Michigan Employment Security Act, MCLA 421.29(1)(m), which until now had disqualified employees from receiving unemployment benefits where they were terminated for failing a drug test. Braska v. Challenge Manufacturing Co., ___ Mich. App. ___(October 23, 2014).

          The MMMA provides, in relevant part:

 “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 or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act. . . .”

           MCLA 333.26424(a). This language had previously been interpreted as only protecting medical marijuana users from criminal laws concerning marijuana and not creating rights for them in the workplace. Casias v. Wal-Mart Stores, Inc., 695 F3d 428 (6th Cir 2012). In Casias, the Sixth Circuit held that the MMMA’s immunity clause did not apply to a private employer’s decision to fire an employee for using medical marijuana.

          In Braska, the Court of Appeals concluded that it would be unlawful for the state to penalize a card-carrying user by denying unemployment benefits when use of medical marijuana resulted in discharge. The three member panel relied upon the language that “[a]ll other acts and parts of acts inconsistent with this act do not apply to the medical use of marijuana as provided for by this act.” Thus, according to the panel, to the extent a medical marijuana card carrying user was denied unemployment benefits due to use, the unemployment act was an act inconsistent with the medical marijuana act. The Court of Appeals clarified that its decision was not at odds with the Casias decision because the issue was not whether the employers violated the MMMA because they terminated the claimants, but whether the State of Michigan imposed a penalty upon the claimants that ran afoul of the MMMA’s broad immunity clause.

          The decision does not affect the misconduct provisions of the MESA where the employer can establish (1) intoxication at work, (2) ingestion or possession on the employer’s premises, or (3) refusal to submit to a drug test. It only applies where a claimant’s positive drug test is the basis for denial of unemployment benefits.

           On the surface, this sounds like a bad decision for Michigan employers, since they will be penalized for discharging medical marijuana users who test positive for marijuana in the form of increased contributions to the unemployment compensation fund. A review of the underlying facts makes the decision even worse for employers in my opinion because it paints the issue with a broad brush and ignores the case sensitive safety implications. For example, one of the three claimants was a hi-lo driver, whose positive drug test was accompanied by the medical review officer’s report that the level of marijuana in the claimant’s system “was higher than average.” Another one of the claimants was a hospital worker and there were reports that she was breaching safety protocols and patient confidentiality, and discussed her family’s drug use, including that she ate “special brownies.” I don’t know about you, but I am somewhat uncomfortable with a hi-lo driver who has “higher than average levels” of marijuana in his system and with a hospital worker who inserts an IV line without protective gloves.

           Proponents of the legalization of marijuana hail the decision as a “breakthrough” and “another acknowledgment that medical-marijuana users’ rights have been unfairly infringed.” This contingent believes “[i]t’s a very favorable decision for the civil rights of employees in Michigan.” Of course, these folks seem to think the rights of marijuana users are more important than the rights of the rest of us to work in a safe workplace. There can still be little doubt that reporting to work after consuming marijuana and then operating dangerous machinery makes for an even greater danger.

           Many employers will still discharge marijuana users regardless of their status as medical marijuana card carrying users even though the Braska case will make their decision more expensive. Others will capitulate and lighten up on medical marijuana users. At least, for now, employers have this choice. But, there is growing pressure to legalize marijuana outright. Today’s elections are proof of that as 11 more Michigan communities seek to de-criminalize possession of small amounts of marijuana or ease enforcement of marijuana laws. More than a dozen Michigan communities have already passed similar laws.