Pubdate: Mon, 13 Nov 2017
Source: Detroit Free Press (MI)
Copyright: 2017 Detroit Free Press
Author: Sarah Lehr


Can you be fired in Michigan for using medical marijuana?

Joseph Casias injured his knee at the Battle Creek Wal-Mart where he
worked in 2009.

Per company policy, he took a drug test. It came back positive.

Casias had been using marijuana at home to treat pain from sinus
cancer and an inoperable brain tumor.

The American Civil Liberties Union sued on his behalf for wrongful
discharge in violation of the Michigan Medical Marihuana Act.

A U.S. District Judge sided with the company. The U.S. Sixth Circuit
Court of Appeals later upheld the ruling.

In Michigan, it is legal for a business to fire an employee for using
medical marijuana, even if the use occurs outside of business hours.

"Basically, a private business can penalize someone for being a
medical marijuana patient," said Joshua Covert, a defense attorney who
represents people charged with marijuana-related offenses.

A section of the state's Medical Marihuana Act says that patients with
medical marijuana cards are protected from penalties, including
"disciplinary action by a business or occupational or professional
licensing board or bureau."

The Sixth Circuit has interpreted the word "business" as a modifier
referring to licensing boards or bureaus.

"Based on a plain reading of the statute, the term 'business' is not a
stand-alone term as Plaintiff alleges, but rather the word 'business'
describes or qualifies the type of 'licensing board or bureau,'" Judge
Eric Clay wrote in response to Casias' claim.

It is not legal, however, for someone fired for using medical
marijuana to later be denied unemployment benefits.

The Michigan Court of Appeals in 2014 sided with three employees who
had been denied unemployment benefits after being fired for using
medical marijuana.

The Unemployment Insurance Agency appealed that ruling in 2015, but
the Michigan Supreme Court refused to hear the appeal.

Michigan is an at-will employment state, which means an employer can
fire someone for any reason. There is no burden for the employer to
establish "just cause."

Legally, employees can refuse to take a drug test, but they can be
fired for that refusal.

Twenty-nine states and the District of Columbia have legalized medical
marijuana, but state laws differ on how they address -- or don't
address -- the drug in the employment context.

"I'm not sure if there's any state that has really figured out this
issue completely," said Matthew Abel, a marijuana legalization
advocate and the founder of the Detroit law firm Cannabis Counsel
P.LC. "Michigan has an opportunity to really be a leader on this."

Sixty-three percent of Michigan voters approved the use of medical
marijuana in 2008.

A month later, lawmakers enacted the state's Medical Marihuana Act , a
series of laws regulating physician-approved marijuana for people with
medical conditions, including cancer, post-traumatic stress disorder,
HIV/AIDS and chronic pain.

Wendy Block, chief lobbyist for the Michigan Chamber of Commerce, said
the chamber came out as "neutral" in 2008 on the issue of medical
marijuana under the assurance that the Medical Marihuana Act would not
affect private employers.

She noted that, under federal regulations, businesses must enforce
zero-tolerance drug policies for dangerous professions like truck driving.

The issue is further complicated because, at the federal level,
marijuana is still illegal. The Drug Enforcement Agency considers
marijuana a Schedule 1 controlled substance, which is the same class
as heroin.

Civil service workers in Michigan can be punished for a positive test
result due to medical marijuana because the state uses federal
standards for its drug testing rules, according to a spokesman for the
Michigan Department of Technology, Management and Budget.

In 2015, state Rep. Sam Singh, D-East Lansing, who is now the Michigan
House Minority Leader, introduced a bill which would have amended the
Medical Marihuana Act to include explicit protections for workers.

The bill, which expired last term, sought to prevent businesses from
firing or otherwise disciplining workers who test positive for medical
marijuana, provided the use does not "hinder job performance" and is
"not incompatible" with the employee's work.

As outlined elsewhere in the act, the bill would not require an
employer to "accommodate the ingestion of marihuana in any workplace
or any employee working while under the influence of marihuana."

Singh has not re-introduced the bill this term, and his office did not
respond to requests for comment about whether he plans to revisit the

Covert, the defense attorney, would like to see stronger employment
safeguards for Michigan medical marijuana patients but described
"corporate interests" as a hindrance.

"The people overwhelmingly support medical marijuana, but the
legislature has been slow to respond," he said. "The legislature
doesn't know enough about cannabis to regulate it."

Cliff Hammond, a senior attorney at Foster Swift's Employers Services,
is hoping the bill does not get a second wind.

"It would cause an employer to worry about liability just because
they're trying to enforce a drug policy in the interest of safety,"
Hammond said. "It causes a complicated scheme. We have something
that's already working. Right now, it's up to the employer."

Block, the Chamber of Commerce lobbyist, echoed that criticism, saying
that the proposed amendments would make it more onerous to run a business.

There is no on-demand test to determine if an employee used marijuana
that day. Cannabis can be detected in someone's urine for as long 30
days after use, depending on the sensitivity of the test.

This makes it difficult for companies to scientifically distinguish
between employees who use drugs over the weekend and those who come to
work high, said Deborah Brouwer, a partner at Nemeth Law PC, a firm
specializing in labor law.

"The science hasn't caught up yet," said Brouwer. "It does present a
problem for employers. Some of our clients are rethinking their
policies. I think it will change even more once someone can develop
better testing."

As marijuana use becomes more accepted, businesses are liberalizing
their drug policies, Brouwer said, though industries that require
driving or operating heavy machinery have held fast to their
zero-tolerance rules.

The advantage of a zero-tolerance policy, Brouwer said, is that it's
clear-cut to enforce and explain to workers.

"It's treating everyone the same," Brower said. "In a sense, it's
about fairness."

Abel, a member of the NORML Legal Committee to legalize marijuana,
believes businesses will eventually relax their marijuana policies to
keep up with society's changing mores.

"The more enlightened businesses don't see marijuana as a detriment,"
said Abel, who said he's been using marijuana for decades. "Businesses
that deal with creativity, especially, are starting to realize that
cannabis and creativity go together."

The most significant hurdle will be insurance companies that require
zero-tolerance policies from their business clients, he predicted.

"The insurance companies control the world to a great extent," Abel
said. "Even so, insurance stats are starting to prove that cannabis is
not unsafe for the economy."

Economic incentives also may motivate companies to relax their drug
policies, Hammond said.

"At a certain point, when the economy's good and it's harder to find
workers, the business has to weigh the risks of damage and injuries
with the ability to get bodies into the door," Hammond said.

Other states, particularly those with legal marijuana, have struggled
to fill positions at jobs that mandate drug testing, Block said.

For that reason, the Michigan Chamber of Commerce opposes a proposed
2018 ballot measure from the Coalition to Regulate Marijuana Like
Alcohol that would legalize recreational marijuana statewide.

Another group, the Abrogate Prohibition Michigan of Midland, is also
pushing for a 2018 ballot measure. If approved by voters, that measure
would legalize recreational marijuana by amending the state's

If one of the measures gets to the ballot and is approved by voters,
Brouwer speculated that more businesses will implement policies that
treat marijuana like alcohol.

"Alcohol is not illegal," Brouwer said. "You still can't show up to
work drunk."
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MAP posted-by: Matt