Medical Marihuana: Implications to Workplace Drug Policies and Testing

April 6, 2015

Many Michigan employers, unbeknownst to them, employ individuals with medical marihuana cards in their purse or wallet. And while Michigan’s medical marihuana law prohibits the use of marihuana at work or an employee working while under its influence, many Michigan employers have not defined for employees how medical marihuana use relates to the application of its workplace drug policies and testing procedures.

Most Michigan employers perceive that the law related to medical marihuana use has been settled favorably for private employers with the Sixth Circuit’s decision and Casias v Walmart Stores, Inc., 695 F.3d 428 (2012). That case held that the Michigan Medical Marihuana Act (MMMA) does not regulate employee marihuana use in private employment.

That perception was shaken by an October, 2014 Michigan Court of Appeals decision which held that denying an authorized medical marihuana user unemployment benefits was a “penalty” under the MMMA and not a basis for disqualification from benefits. (Braska v Challenge Manufacturing and Michigan Unemployment Insurance Agency, 2014 Mich. App. LEXIS 2112.)

That decision has been appealed to the Michigan Supreme Court. In the meantime, it represents the law in the state of Michigan. In Braska, the Court of Appeals refused to recognize that failing a drug test is a distinct act separate from the medical use of marihuana. Even more troubling is the Court of Appeals reference in a footnote questioning the Sixth Circuit’s analysis in Casias. A federal court – even the Sixth Circuit Court of Appeals that covers Michigan – does not have final authority to interpret and apply Michigan laws like the MMMA.

Michigan medical marihuana law remains unsettled for employers. Michigan employers should deliberately consider how this unsettled state directly impacts the development and application of workplace drug policies. Employers with operations across the U.S. must keep in mind that seven states have anti-discrimination provisions in their medical marihuana statutes: Arizona, Delaware, Connecticut, Illinois, Maine, Minnesota and Rhode Island. Those states that have legalized recreational marihuana use (Alaska, Colorado, Oregon, Washington and Washington D.C.) add the dilemma of reconciling marihuana’s illegal status under federal law.

Employers must continue to carefully monitor developments related to the off-duty use of marihuana and how these developments implicate the workplace drug policies and testing.

Contributed by Donald P. Lawless, Barnes & Thornburg LLP

View the on-demand webinar “Medical Marihuana in the Workplace” with Don Lawless and Michael Palmer.