Michigan Medical Marihuana Act – Potential Employer Pitfalls

November 10, 2015
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An employee’s urine test discloses the presence of the marihuana metabolite, THC-COOH. The employee produces a valid “Registry Identification Card” issued pursuant to the Michigan Medical Marihuana Act [MCL 333.26421, et seq. – MMMA].  He explains he last smoked medical marihuana over the weekend.

What can the employer do?  What should the employer do (or not do) under current Michigan law?

The MMMA grants “immunity” to authorized medical marihuana patients in Section 4(a) of the Act [MCL 333.26424]:

“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 marihuana in accordance with this act * * *.”

[Emphasis added].  Does this protect the employee from discipline or discharge?

The case of Casias v Wal-Mart Stores, Inc, 695 F3d 428 (6th Cir 2012) says “no.”  Casiasruled that the MMMA does not apply to private employers, only state actors.  This ruling offers a strained reading of the above statutory section, and ignores other pertinent sections of the MMMA.  Recent court decisions have impliedly criticized Casias and refused to follow it in related factual situations.  In Braska v Challenge Manufacturing, 307 Mich App 340 (2014), the court stated “the Casias decision is not binding precedent on this Court,” and found that persons lawfully using medical marihuana are not disqualified from receiving unemployment benefits following a positive drug test.

It is unclear what a Michigan appellate court would decide if faced with facts similar to Casias. As a result, employers are wise to think twice before firing a medical marihuana user for testing positive on a drug test.

Employers also should exercise great restraint when discovering that an employee possesses a valid Registry Identification Card.  Why?  Because any conversation or discussion about the underlying reason for the employee’s use of medical marihuana is fraught with danger.  If an employer learns its employee is using medical marihuana to control her epilepsy, and the employer did not know about the employee’s condition before, any employment action the employer thereafter considers might appear to be motivated by the employee’s disability and not her positive drug test.  In fact, a very recent decision by U.S. District Judge Steeh in Detroit involved precisely this claim.

If any employer or employee is faced with a medical marihuana issue, attorney Robert M. Sosin [248-642-3200 / robert@asnlaw.com] would be pleased to discuss the matter in more detail.