By: Claudia D. Orr
Could there be any more drama for employers when it comes to Michigan’s Medical Marihuana Act (the “Act”), MCL 333.26421, et seq? Ever since it was passed in 2008, it has caused confusion and grief for employers…and the saga continues.
While it is now well established that this law does not affect an employer’s right to maintain a drug testing program or to discharge any employee who refuses to submit to a test or who tests positive, it now presents another “hitch in the get-along” for employers. Specifically, while terminating the employee who tests positive is lawful, absent proof that the employee was actually working under the influence, the employee will be permitted to collect unemployment compensation benefits.
Last year, the Department of Licensing and Regulatory Affairs, Unemployment Insurance Agency, sought leave to appeal three cases after it lost its appeals at the Circuit Court level. In December 2014, the Court of Appeals granted leave, consolidating all three cases. It noted that among the reasons for disqualification from receiving unemployment benefits under the Michigan Employment Security Act were illegally ingesting, injecting, inhaling, or possessing a controlled substance on the premises of the employer; refusing to submit to a drug test or testing positive on a drug test. But, none of the claimants were found to have ingested, injected, inhaled or possessed marijuana at work and none refused the drug test.
Thus, the only question was whether testing positive would disqualify the employees from benefits. The Court of Appeals determined, among other things, that when the employee holds a medical marijuana card and uses marijuana in a manner consistent with the Act, disqualification for testing positive would constitute an impermissible penalty under the Act.
On November 4, 2015, the Michigan Supreme Court denied leave, finding it was not persuaded that the questions presented should be reviewed by it. Therefore, the holding of the Court of Appeals is now final.
However, an employee who refuses the drug test should still be denied unemployment benefits because the results may have disclosed the use of other unlawful drugs. Also, an employer should gather and present evidence showing the employee was actually under the influence of drugs at work (glassy eyes, slurred speech, dizziness, “munchies”…). Finally, if the employee claims to have a medical marijuana card, the employer should try to obtain a copy at the time of the test, on the oft chance that it was forged.
Bottom line, an employer can (and probably should) fire an employee who tests positive for marijuana regardless of a medical marijuana card, but it will probably be on the hook for unemployment benefits. If you have any questions about your drug testing program, or need assistance developing one, you should consult with an attorney who specializes in employment laws, such as the author.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of the law firm Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM). She can be reached at firstname.lastname@example.org or at (313) 983-4863.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. November 2015.