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Sit back, fire one up and collect unemployment . . . But only if you have a card.

We interrupt our normal program for a special report on Medical Marijuana in Michigan. How’s that for an alliteration? It has been a while since we have discussed the Michigan Medical Marihuana Act, MCL 333.26421 et. seq (MMMA) and how it relates to employment. To see the last time we did, which was back in 2011, click here. And you might want to do that because we are going to talk about that court’s opinion. But first, what’s new?

Well, here is the question presented by this most recent challenge (Braska v Challenge Manufacturing) to an employee (actually three employees) termination for testing positive for marijuana (and by the way, I am going to spell marijuana with a “j” even though the Michigan Legislature insisted on spelling it with an “h”, what a bunch of squares): whether an employee who possesses a registration identification card is disqualified from receiving unemployment benefits after the employee has been terminated for failing to pass a drug test?

I know you can’t wait until the end of this post for the answer, so drum roll please, . . . Seems the answer is . . . . the employee does get unemployment benefits.

What? How can that be? After all, the U.S. District Court for the Western District of Michigan, Southern Division held that a private employer could fire an employee who had a card and who tested positive during a drug test conducted by his employer. You will recall, because you read it right here, that Judge Jonker stated: “The fundamental problem with Plaintiff’s case is that the MMMA does not regulate private employment. Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state.”  Judge Jonker went on to note that the employee’s public policy argument would “confer on medical marijuana patients, rights, to this point conferred only on a select group of people based on immutable characteristics like race, sex and religion.”  Judge Jonker stated:  “Further, the MMMA does not indicate a general policy on behalf of the State of Michigan to create a special class of civil protections for medical marijuana users.” You can see the opinion here. Plus, the Michigan unemployment statute disqualifies people for benefits under § 29(1)(m) for “testing positive on a drug test, if the test was administered in a nondiscriminatory manner.” Isn’t that what happened here? The employees tested positive on a drug test administered in a nondiscriminatory manner.

So what’s up with that? How come an employer has the right to fire the employee, the statute disqualifies them from getting benefits, but the employee can still get unemployment compensation?

Here is what the Michigan Court of Appeals said: First, the court noted that the MMMA has a broad preemption provision which says:

 … ‘[a]ll other acts and parts of acts inconsistent with this act do not apply to the medical use of marijuana as provided for by this act.’

So that disqualifier in the unemployment statute, yeah, it does not matter if the employee has a card and is not otherwise violating the MMMA by, for example, “being under the influence at work” or “using at work.”

Second, the court noted that the MMMA says that people with cards who are using marijuana in accordance with the MMMA:

… ‘shall not’ . . . (2) be 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. . . .

And the court held:

 Applying this definition to the present case, we conclude that denial of unemployment benefits under § 29(1)(m) constitutes a ‘penalty’ under the MMMA that was imposed upon claimants for their medical use of marijuana.

So, the summary is that the MMMA trumps the unemployment act and denying unemployment benefits just because of a positive test for someone who properly has a card is a penalty imposed by the state in violation of the MMMA.

But what about the Casias case? Well the court dealt with that too. First they basically said Casias is not binding on the Michigan Court of Appeals because this is a question of Michigan law and Casias was a federal case. Then the court noted:

Moreover, unlike in Casias, in this case, we are not presented with the issue of whether the MMMA’s immunity clause applies in cases involving action solely by private employers.The issue raised in this case is not whether the employers violated the MMMA because they terminated claimants. The issue is whether, in denying unemployment benefits, the MCAC—a state actor—imposed a penalty upon claimants that ran afoul of the MMMA’s broad immunity clause. When an individual is denied unemployment benefits, the employer’s conduct is not at issue, but rather, the denial involves state action. See Vander Laan v Mulder, 178 Mich App 172, 176; 443 NW2d 491 (1989).

You see, ultimately the court decided that determining who gets or does not get unemployment is up to the state and not the employer and that makes Casias different.

So what does this mean for you the next time you fire someone for testing positive for marijuana? Well one thing is certain, if the employee has a medical marijuana card that was properly issued and you can’t prove the employee was using at work or under the influence at work, they are going to get unemployment benefits.

Oh, and one more thing. There are some other issues here too. Like how would this court have come down in the Casias case? Would they have agreed with Judge Jonker or gone the other way? We don’t know. We can guess, but I am not going to do that in this post. I’m not going to do it for a couple or reasons, first, we don’t know because even though the Court addressed the Casias case, that issue, can an employer fire an employee with a medical marijuana card, was not in front of them to decide. And, second, this may not be the final word on this issue. No word yet, if the state will appeal this decision to the Michigan Supreme Court. So keep your eyes open and we will too. And don’t panic, . . . yet.