How might Michigan's employment laws be affected if Michigan votes to legalize recreational marijuana use?

Michigan voters will go to the polls on November 6, 2018 and decide whether to legalize recreational marijuana use by voting on proposal 1.  If the current polls are to be believed, there is a good chance that proposal 1 will pass and recreational marijuana use will become "legal" for persons 21 years of age or older. If proposal 1 passes, there are sure to be many legal issues that arise including the application of the law in the job setting.

Many Michigan employers currently have workplace drug policies that prohibit drug use on employer property and that prohibit employees from working while under the influence of drugs.  Employees will still be subject to drug screens on the job whether proposal 1 passes or not.  If proposal 1 becomes the law, employees will not have a free pass to smoke pot.

Current law in Michigan: The Michigan Medical Marihuana Act (MMMA) does not prohibit a private sector employer from discharging an employee for violating an employer’s workplace drug policy

Michigan voters approved the MMMA in November 2008. The MMMA permits qualified persons to use marijuana for medical purposes. However, the MMMA did not legalize the use or possession of marijuana in all contexts. The MMMA specifically states that it did not create a general right for individuals to use and possess marijuana in Michigan. Instead, the MMMA grants individuals who possess a medical marijuana card immunity from arrest, prosecution, or penalty in any manner.

After the MMMA passed, employment related disputes arose. Could an employee who possessed a medical marijuana card be discharged for violating an employer’s zero-tolerance drug policy? The United States Sixth Circuit Court of Appeals held that the Michigan Medical Marijuana Act did not prevent a private employer from firing an employee who tested positive for marijuana even though the employee had a legal medical marijuana card. See Casias v Walmart.

The facts in the Sixth Circuit case are summarized as follows: Joseph Casias was an employee of Walmart at its Battle Creek Michigan store. Mr. Casias was diagnosed with sinus cancer and inoperable brain tumor at the age of seventeen (17). During his employment at Walmart, Mr. Casias endured ongoing pain in his head and neck. Mr. Casias continued to experience constant pain and other side effects of his prescribed medication. After Michigan passed the Medical Marijuana Act, Mr. Casias’ physicians recommended that he try marijuana to treat and alieve his pain. Mr. Casias stated that the drug reduced his level of pain and relieved some of the side effects from his other prescribed pain medication. Mr. Casias complied with the state laws and never used marijuana while at work nor did he come to work under the influence.

One day at work, Mr. Casias injured himself by twisting his knee the wrong way while pushing a cart. Mr. Casias stated that he was not under the influence of marijuana at the time of the incident. However, Walmart required him to submit to a drug test. Mr. Casias showed his Michigan medical registry card to Walmart and took the drug test where he tested positive for marijuana. Walmart fired Casias for the failed drug test. Mr. Casias filed a lawsuit for wrongful termination citing his rights under the MMMA. Walmart defended the lawsuit. The Sixth Circuit Court ultimately ruled in favor of Walmart stating that the Michigan Medical Marijuana law did not regulate private employment actions. The Court held that Michigan businesses should be free to develop their own disciplinary policies and that employers could enforce workplace drug policies that call for termination upon a positive drug test even if the employee has a medical marijuana card.

The Casias v Walmart decision remains a troubling case for employees in Michigan who hold medical marijuana cards.

After the Walmart decision, the Michigan Court of Appeals held that a positive marijuana drug test does not disqualify an employee from receiving unemployment benefits if the employee used marijuana in accordance with his medical marijuana card. See Braska v Challenge Manufacturing Company. In Challenge Manufacturing, the Michigan Court of Appeals stated that the terminated employees were entitled to receive unemployment benefits because the MMMA protected individuals against any improper penalty. The court concluded that although the employees ordinarily would have been disqualified from receiving unemployment benefits for a positive drug test, they were entitled to benefits because there was no evidence to suggest that the positive drug tests were caused by anything other than the use of medical marijuana in accordance with the terms under the MMMA.            

Proposal 1 states that it would still allow employers to terminate employees who violate an employer’s drug free workplace policy.

The legislation behind Proposal 1 contains a clause that would allow employers to continue to discipline employees for violating a workplace drug policy. The proposed legislation provides in part that:

"This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer’s property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence or marihuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marihuana."

If Proposal 1 passes, employees could still be faced with potential employment consequences if they use marijuana recreationally. An employer may contend that its drug-free workplace policy is enforceable and that a violation could lead to discharge. Many employers have taken the position that any amount of marijuana in an employee’s system is a violation of policy that could result in discharge.

This is an area of the law that is likely to be subject to fast moving changes and litigation. Employees working in safety sensitive functions and those employees required to drive for their job should be especially careful with respect to the use of medical marijuana pursuant to their medical cards. Moreover, under Michigan employment law, there is no objective standard to determine when someone is “under the influence” of marijuana. If proposal 1 passes, there is certain to be more employment litigation where employees are fighting termination after a positive drug test. Even if you currently have a medical marijuana card, you should consider seeking legal advice about whether the use of medical marijuana may impact your ability to keep your job.

How can the lawyers at Kalniz, Iorio & Reardon help?

If you have questions about workplace drug policies, the Michigan Medical Marijuana Act, or wrongful terminations, contact Kalniz, Iorio & Reardon and ask to speak with an attorney.