On December 4, 2008, Michigan became the sixteenth state to enact legislation permitting the medicinal use of marihuana. The purpose of Michigan’s Medical Marihuana Act (MMMA) (MCL 333.26421, et seq) is to provide protection to qualifying patients who lawfully use marihuana under the MMMA from prosecution. Under the MMMA, qualifying patients who lawfully use and possess marihuana are exempt from civil prosecution by a business (MCL 333.26424(a)). This means that it is unlawful for a business to penalize a qualifying patient who lawfully uses marihuana under the MMMA. 

However, nothing in the MMMA requires an employer to accommodate a qualifying patient’s ingestion of marihuana or a qualifying patient’s work while under the influence of marihuana. (MCL 333.26427(c)(2)). Most states with statutes permitting the use of medicinal marihuana to some extent have a version of one of these two provisions. But no state has both provisions. So, while employers cannot penalize an employee who lawfully uses under the MMMA, employers do not have to accommodate an employee’s ingestion or intoxication. This left employers and employees alike confused as to how to lawfully comply with the MMMA. Such confusion lead one district court judge to declare the statute as “probably one of the worst pieces of legislation I’ve ever seen in my life.” (People v Redden, __ Mich App __; __ NW2d __ (2010).) This confusion appears to now have been cleared up.

A recent case from the Federal District Court for the Western District of Michigan appears to have settled much of the headache, [Casias v Wal-Mart Stores Inc, __ FSupp 2d __ (WD Mich 2011)]. In Casias v Wal-Mart Stores Inc, a Wal-Mart employee suffered an injury while at work and, pursuant to company policy, was subjected to a mandatory drug test. The employee was a qualifying patient under the MMMA and possessed a valid registry card at the time of his drug test, which he presented to the drug-testing staff and his shift manager. Nevertheless, the employee was fired after he tested positive for marihuana and filed a lawsuit against Wal-Mart and his shift manager alleging that defendants wrongfully terminated plaintiff in violation of public policy and the MMMA. The Court found that the MMMA contained absolutely no evidence that the legislature intended the MMMA to apply to a private employer and therefore held that plaintiff had no right of action against Wal-Mart under the MMMA. Id. [citing Lash v City of Traverse City, 479 Mich 180, 192-93; 735 NW2d 628 (2007)]. Therefore, plaintiff’s termination was not in violation of the MMMA.

Moreover, the Court rejected plaintiff’s argument that the MMMA created a new public policy in Michigan prohibiting a private employer from taking disciplinary action against an employee based on conduct protected from criminal prosecution under the MMMA. According to the Court “Plaintiff cannot possibly [show that the statutory policy at issue applies to this case] . . . because the MMMA addresses potential adverse action by the state; it does not regulate private employment.” Plaintiff’s claims for wrongful discharged were then dismissed. 

So what effect does this decision have on private employers and employees?

First, it must be remembered that this decision comes from a federal district court. Even though it is interpreting a Michigan statute, the decision is not precedent on Michigan state courts. However, such decisions are persuasive and can guide Michigan courts where there is a lack of case law in Michigan on the subject. Mich Dept of Civil Rights ex rel v General Motors Corp, 412 Mich 610, 646; 317 NW2d 16 (1982). 

It appears that the Casias decision allows private employers to terminate a qualifying patient who tests positive for marihuana, even if the qualifying patient presents a valid registration card. It also appears that employees of private companies who carry valid cards under the MMMA are not protected from their private employer’s discipline or discharge if the employee tests positive.

This is good news for private employers with drug testing policies for several reasons: 1) employers do not have to engage in a back and forth of whether the employee was intoxicated at the time the employee was tested or on the job, all that is needed is a positive test; 2) employers can legally enforce their drug testing policies; and 3) employers do not have to engage in an investigation as to whether an employee is in fact a qualifying patient and holds a valid registration card. 

For employees who are qualifying patients, the decision essentially upends any protections the MMMA may have provided in regard to marihuana use and employer discipline. However, the Casias decision deals only with private employers. The decision may have left some protection for state employees who test positive. Much of the Court’s decision reasons that the purpose of the MMMA is to prevent qualifying patients from being prosecuted and penalized by the state. It may be that qualifying patients have a cause of action against the state if the patient otherwise complies with the MMMA.

Medical marihuana use in the workplace is an emerging and evolving field of law, especially in Michigan. This field will continue evolve until the Legislature revises the statute to make it more clear for courts to interpret. For now, however, it appears that private employers can rest easy about their drug testing policies and employees should use marihuana at their own risk. However, employment lawsuits against the state or a state agency involve many complex issues that are beyond the scope of this article.