The overlapping and sometimes inconsistent rules and regulations that govern medical marijuana use and workplace drug testing continue to perplex employers. Last week’s decision by the Michigan Court of Appeals that approved unemployment benefits for medical marijuana users fired for testing positive won’t do anything to make this issue any less hazy.
The court of appeals case involved employees of three different employers who each possessed a valid medical marijuana card. Each employee failed a work place drug test and was terminated for violating their employers’ policy. The Michigan Compensation Appellate Commission denied each of the three workers unemployment compensation after the positive tests.
The Michigan Court of Appeals, agreeing with decisions by lower courts, held that because the employees were fired solely for failing a drug test related to their legal use of medical marijuana – not for performance reasons – they qualified for unemployment benefits. The court based its opinion on a provision in the Michigan statute that prohibits penalties for those who use medical marijuana legally.
While supporters of medical marijuana are hailing this recent decision as a victory, employers are feeling slightly dazed and confused by conflicting federal and state laws regarding marijuana use. Under federal law, marijuana is considered an illegal substance regardless of the reason of its use. In fact, in 2012, a federal appellate court held that an employer in Michigan did not violate the Michigan Medical Marihuana Act, public policy, or disability accommodation laws when it terminated an employee with cancer who tested positive for medical marijuana.
Where employers stand under the various state laws regarding marijuana use – whether for medicinal or recreational purposes – is less clear. Currently, 23 states and the District of Columbia have laws that allow some form of medical marijuana use and two states and a number of local jurisdictions allow recreational use. However, what is unclear under many state laws is what latitude employers have in acting on positive drug tests by employee users of medical marijuana and how to maintain a drug-free workplace in light of state laws. Cases testing the scope of those laws are pending in a number of states. For now, the decisions tend to support employers’ ability to maintain a drug-free policy that includes prohibiting medical marijuana.
One thing that the recent Michigan case makes clear is that with laws that are less than precise, the courts will be left to cut through the smoke and define the parameters of medical marijuana use in the workplace.