Medical marijuana, the workplace and the law
By Steve Thorpe
Legal News
The Michigan Court of Appeals ruled recently that a public employer is free to deny at-will employment to a medical marijuana cardholder who fails a drug test in violation of a zero-tolerance drug policy.
“Eplee v City of Lansing,” involved an applicant who received a conditional offer of at-will employment for an office position. A condition of the job offer was passing a drug screening.
Angela Eplee alleged that she eventually lost the job offer solely because her drug screen revealed marijuana use.
She claimed that because she held a valid medical marijuana card, the withdrawal of the job offer violated the Michigan Medical Marihuana Act.
Kamil Robakiewicz of Miller Canfield specializes in litigation and alternative dispute resolution, with a particular emphasis on labor and employment disputes.
Before joining Miller Canfield, Robakiewicz served as a law clerk to U.S. Court of Appeals Judge James L. Dennis, Fifth Circuit.
Thorpe: Give us some background on this case.
Robakiewicz: The plaintiff in this case applied for a manager position with the Lansing Board of Water and Light (BWL), which is a nonprofit, municipally-owned, electric utility that provides services to the greater-Lansing area.
The plaintiff received a conditional offer of at-will employment, contingent on satisfactory background checks and a drug screen.
The drug screen returned a positive result for THC, the main active ingredient in marijuana. Eventually, the BWL decided not to hire the plaintiff.
She sued the BWL and the city of Lansing, alleging — incorrectly — that she was denied employment solely because of the drug test. The plaintiff claimed that because she held a medical marijuana card, the decision not to hire her violated the Michigan Medical Marihuana Act (MMMA) and also amounted to a breach of contract.
The circuit court judge held that the MMMA does not prevent employers from maintaining zero-tolerance drug policies; the BWL and Lansing were immune from the MMMA claim; and a breach of contract claim cannot be premised on at-will employment.
Thorpe: The court emphasized that the MMMA protects against certain penalties but “does not create affirmative rights.” Explain.
Robakiewicz: The MMMA states that it creates an “affirmative defense,” allowing an individual to “assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana.”
Under specific circumstances, it creates immunity from criminal prosecution and certain civil penalties, such as the loss of a business license. The MMMA does create a private right of action, such that medical marijuana cardholders can file suit whenever they feel that their ability to consume medical marijuana has been impinged. Stated simply, the MMMA is a shield, not a sword.
Thorpe: The employer in this case was a public institution. Does this ruling also affect private employers?
Robakiewicz: The court of appeals did not address whether the result would have been different if the defendants had been private companies. In a 2012 case titled Casias v Wal-Mart Stores, Inc., the Sixth Circuit held that the MMMA does not protect against disciplinary employment actions by private businesses. The state courts of Michigan have not specifically addressed that issue in a published decision. Much of the Court of Appeals’ reasoning and rationale in this case, however, should apply equally to private employers.
Thorpe: A similar case in Delaware in December played out differently. What occurred there?
Robakiewicz: Courts in several states with medical marijuana statutes similar to Michigan’s have upheld zero-tolerance workplace drug policies.
Those states include California, Washington, and Montana. In a recent unpublished decision, Chance v Kraft Heinz Foods Co, a Delaware trial court held that an employer violated Delaware’s Medical Marijuana Act (DMMA) when it discharged an employee for testing positive for marijuana use.
The court based this result on the DMMA’s “anti-discrimination” provision, which reads, in relevant part, “an employer may not discriminate against a person in hiring, termination, or any term or condition of employment...if the discrimination is based upon ... [a] registered qualifying patient’s positive drug test for marijuana.”
Michigan’s Medical Marihuana Act has no such language limiting an employer’s ability to impose discipline for medical marijuana use. Indeed, in 2015, the Michigan Legislature introduced a bill to amend the MMMA to add language similar to Delaware’s, but that bill failed to pass. This crucial difference in the statutes explains the different results.
Thorpe: How might the result have varied if the plaintiff had an employment contract that provided for employment other than at-will?
Robakiewicz: The court of appeals held that Section 4(a) does not create affirmative rights, so a person must have an independent entitlement, right, or benefit to trigger the MMMA’s protections. Here, the plaintiff merely had a conditional offer for at-will employment, which the BWL was free to rescind for any reason or no reason at all.
The court of appeals suggested that the result could have been different if the plaintiff had had a contractual right or property interest in her employment. That issue was not actually before the court, however, so we do not know if it would have changed the outcome.
Thorpe: Is this case headed to the Michigan Supreme Court? What might we see there?
Robakiewicz: It is up to the plaintiff to decide whether she would like to appeal to the Supreme Court and she has not informed us one way or the other. If she decides to appeal, and if the Supreme Court were to accept the appeal, I expect the Court would affirm the Court of Appeals’ thorough, carefully-reasoned decision.
If the high court were to adopt the plaintiff’s position, it would mean that public employers could not discipline their employees for using medical marijuana in accordance with the MMMA, essentially transforming medical marijuana cardholders into a protected employment classification, like race, religion, or gender.
If the drafters of the MMMA had intended that result, they almost certainly would have said so explicitly in the text. I do not expect the Supreme Court to read such a provision into the statute.
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