As of September 2014, the Michigan Medical Marihuana Program placed the number of registered qualifying patients at over 146,000. With so many patients, it has become increasingly likely that companies large and small will employ a patient at some point in their business. Many consider analysis of the Michigan Medical Marihuana Act as limited to that of a criminal defendant. To the contrary, the MMMA protects far more conduct than possessing marihuana and the case law recognizing these protections is in its infancy. Nevertheless, the progress being made through the appellate courts is, in a word, groundbreaking.

The convergence of the MMMA and employment law in Michigan began in 2011. In Casias v Wal-Mart, 695 F3d 428 (6th Cir 2012) an associate (who was a patient) sued WalMart after being terminated for testing positive for marihuana. Both the District Court and Court of Appeals agreed with Wal-Mart’s position that the MMMA did not provide a separate cause of action for violations of the MMMA and that, in any event, a private employer is permitted to terminate an employee who fails a drug test because private employers are not “a business or occupational or professional licensing board or bureau.” MCL 333.26424(a). Thus the door was shut on the matter in terms of private employment.

Interestingly, there is no case law in Michigan addressing this question in terms of public employment. Rather, a string of consolidated cases have wound their way through the system involving a patient’s right to receive unemployment benefits. In Kemp v Hayes Green Beach Memorial Hospital, 307 Mich App 340 (2014), several employees (who were patients) were terminated for testing positive for marihuana. When they applied for unemployment benefits, the Department found that they were disqualified because they were discharged for violating MCL 421.29(1) (m), relating to employment related drug tests.

The MMMA provides in part that patients shall not 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.” The Court held that the disqualification of unemployment benefits was a “penalty” imposed by the MCAC for the medical use of marihuana. Thus, the MESA is in conflict with and superseded by the MMMA inasmuch as the MESA disqualifies an employee from benefits solely on the basis of testing positive for marihuana. The Department’s application for leave was denied in November 2015.

The extent to which the MMMA’s prohibition of denying both patients and caregivers “any right or privilege . . . by a business or occupational or professional licensing board or bureau” applies to other aspects of employment remains to be seen. Is Workers’ Compensation required to compensate injured workers for their medical marihuana? Is it constitutional for a judge to prohibit a probationer who works for a marihuana dispensary from being in the presence of medical marihuana? Questions to ask for another day, but employers will want to update their drug testing policies for now.