By: Miriam L. Rosen
Medical Marijuana User’s Employment Claims Go Up in Smoke
Employers sometimes struggle with what actions to take when an applicant or employee with a valid medical marijuana card tests positive. It can seem counter-initiative to deny or terminate employment for a positive drug test when the applicant or employee is legally using the product. In a February 19, 2019 unpublished opinion, the Michigan Court of Appeals cleared the air, ah…so to speak, for employers on this issue. The court held that an employer does not violate the Michigan Medical Marihuana Act (“MMMA”) by rescinding a conditional offer of employment based upon a positive drug test. Eplee v City of Lansing, Mich. Court of Appeals (unpublished opinion per curiam Feb. 19, 2019).
Angela Eplee applied for a position with the Lansing Board of Water and Light (“BWL”). After Eplee received a conditional job offer that included a required drug screen, she informed BWL that she held a valid state-issued medical marijuana card. Several days later, BWL notified Eplee that she had tested positive for tetrahydrocannabinol (“THC”). Although BWL initially discussed adjusting its drug testing policy, two days later BWL notified Eplee that it was rescinding the conditional job offer.
Several months later, Eplee filed a two-count complaint against BWL for violation of the MMMA and breach of contract. Eplee alleged that BWL violated Section 4 of the MMMA, which protects the holder of a valid medical marijuana card from “arrest, prosecution or penalty in any manner or [denial of] any right or privilege” by a business or occupational or professional licensing board or bureau.
Eplee alleged that as a “business or occupational or professional licensing board or bureau” BWL was prohibited from denying her “any right or privilege” based on her status as a medical marijuana card holder.
Of course, BWL saw things differently. In asking the court to dismiss the case, BWL noted that: 1) the “MMMA does not create a private cause of action authorizing suit for alleged violations of the act; and 2) that the MMMA does “not prohibit employers from maintaining zero-tolerance drug policies for their applicants and employees.” BWL also argued that a breach of contract claim could not be based on the rescission of an offer for at-will employment.
The court noted that the core of the dispute was Eplee’s “contention that because she tested positive for THC as the result of her use of medical marijuana, the BWL was absolutely prohibited for rescinding her conditional offer of employment.” On that point, the court disagreed with Eplee and dismissed her claims.
With regard to Section 4 of the MMMA, the court noted that the law protects a card holder from loss of a pre-existing entitlement, right, or benefit. However, the court held that BWL’s rescission of Eplee’s job offer was not the loss of any pre-existing right or entitlement because under Michigan law employment relationships are presumed to be terminable “at the will of either party,” and “such at-will employment relationships may be terminated “for any reason or no reason at all.” In other words, as an applicant for an at-will position, Eplee had no right or entitlement to the job. The court noted that the MMMA “does not provide an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class of users of medical marijuana.”
This opinion provides employers with some much needed guidance on how the MMMA applies to enforcement of drug-testing policies. While it is likely that there will be similar challenges to the new recreational marijuana law, that act does specifically state that it “does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person…because of that person’s violation of a workplace drug policy.” Finally, the at-will nature of employment was important in this case. It should serve as a reminder to employers to include clear at-will language in employment applications and to ensure that applicants complete and sign those applications.
This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at firstname.lastname@example.org or at (248) 220-1342.
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