Court Rules Michigan Employers Can Refuse to Hire Medical Marijuana Users

In a recent unpublished opinion, a Michigan state appellate court held the Michigan Medical Marihuana Act (MMMA) did not provide a cause of action for an applicant whose conditional job offer from the City of Lansing was rescinded after he tested positive for marijuana during a mandatory pre-employment drug test. Eplee v. City of Lansing, 2019 Mich. App. LEXIS 277 (Feb. 19, 2019).

This is at least the second decision involving failed drug tests, medical marijuana, and the MMMA; both were decided in the employer’s favor. This state appellate court decision focused on the following MMMA provision:

A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or 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, for the medical use of marihuana in accordance with this act . . .

The court held the MMMA did not make medical marijuana users a protected class and did not “provide an independent right protecting the medical use of marijuana in all circumstances.

The court distinguished the outcome in this case from that in a trio of cases in which a separate Michigan appellate court panel held medical-marijuana-using employees discharged for failing an employer’s mandatory drug test were entitled to state unemployment benefits. In that instance, the employees had a right to unemployment benefits that was denied based on their medical marijuana use. However, in the more recent case, the applicant did not have a right to, or property interest in, employment with the city.

Instances involving applicant or employee use of medical and/or recreational marijuana are becoming more common. More infrequent, however, are decisions clarifying whether or how these laws address marijuana use in the employment context.

Accordingly, employers should consult knowledgeable counsel when determining whether and how to develop and apply drug testing policies and procedures.

Karen A. Smyth has considerable experience counseling and defending lawyers, medical professionals and employers both directly and through insurance carriers. Ms. Smyth represents numerous other professionals, including insurance brokers and agents, real estate brokers and agents, directors & officers in a broad range of litigation matters in both state and federal courts. Ms. Smyth is the inaugural President of the Michigan Chapter of the Claims & Litigation Management Alliance. Ms. Smyth can be reached at KSmyth@lipsonneilson.com, or by calling 248-593-5000.

Founded in 1985, the Lipson Neilson law firm has grown from three founding members to thirty-four attorneys located in three states. Lipson Neilson attorneys represent and provide counsel to clients throughout the country and around the world.