Tuesday, June 16, 2015

Update- Employment law and the Michigan Medical Marihuana Act

In an earlier post, this blog gave you a nutshell of how the Michigan Medical Marihuana Act is supposed to work.

Q: A reader sent me the question based on the previous blog: What if I am fired from my job for use of marijuana? Do I have a way to sue my employer for wrongful discharge?
A: Courts have already answered that question, and the answer appears to be "no, you don't."

The issue: Michigan law, in the MMMA (Short form of Michigan Medical Marihuana Act), says that 
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  . ( . . . ) (MCL 333.26424 (a))
 And that
There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act. (MCL 333.26424 (d)).

This sounds as if an employee can't be fired for medical use. And that the law presumes that if a qualified patient keeps his or her registry current, and doesn't show other "evidence" that the use wasn't medicinal.

But courts have ruled otherwise. A lot of employers have a "zero tolerance" policy. This means that the employer is aware that the MMMA exists, but will fire an employee who has tested positive for cannibis, even though the employee's use is medical. Again, Courts say this is OK.

This question was specifically addressed in a somewhat recent case, in Michigan. An employee sued Wal-mart for firing him for his positive drug test, since the positive result was based on medical use. The employee, Joseph Casias, suffered from inoperable brain cancer, and was prescribed marihuana use by his oncologist when the MMMA went into effect.  (article here.) He didn't use while on the job, tested positive, and was fired.

Casias  sued in US District Court, lost, and appealed to the 6th Circuit Court of Appeals. The Appeals court upheld the decision of the District Court, saying that the MMMA doesn't offer protection from private employers' actions against an employee, only to prevent criminal charges against someone's medical use.

Additionally, the Court said that
Michigan voters could not have intended such consequences and that accepting plaintiff’s argument would create a new category of protected workers which would ‘mark a radical departure from the general rule of at-will employment in Michigan.’”
Casias v Wal-Mart Stores, Inc., et al,  See also this article,  full text opinion here.

It's hard to say how this could change in the future. There are some open questions from this case, such as: Did Michigan voters mean to create an Act that would exclude medical users from being fired for medical use? How would the law be altered to reflect that? (Answer: legislative change could bring this about, or a petition to change the law could end up on future ballots, I suppose).
Joseph Casias, brain cancer patient and fired Wal-mart employee.

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