Medical Marijuana & Employment Law: Unanswered Questions For Employers and Employees

Marijuana Leaf.jpgRecently a Michigan federal court judge dismissed a case brought by a former Wal-Mart employee of five years and associate of the year in 2008, after he was terminated when a drug test was positive for marihuana. (Reported by Larry Gabriel of the Metrotimes). Mr. Casias had previously registered under Michigan's statute to use marihuana in connection with his sinus cancer and a brain tumor (Michigan spells marijuana with an "h" rather than a "j"). 

Following his termination, Mr. Casias sued Wal-Mart claiming he was wrongfully terminated in violation of an implied right to use marihuana for medicinal purposes during off-duty hours and in violation of public policy as set forth in the Michigan Medical Marihuana statute. The court disagreed and concluded that the statute protects against prosecution or other potential adverse state action but did not create "a new protected employee class" insulated from private sector disciplinary actions. The Casias case is on appeal to the Sixth Circuit.  

Does the Americans with Disability Act Allow for an Employee's Use of Medical Marihuana? 

Mr. Casias did not challenge his discharge under the Americans with Disabilities Act (ADA) as a failure to accommodate his disability. And an ADA claim would have made for an interesting analysis as to whether a violation of the ADA occurred. Consider the following: 

  1. Certainly under the ADA anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. Further, the ADA does not prevent employers from testing applicants or employees for current illegal drug use, or from making employment decisions based on verifiable results.
  2. But under state law, Mr. Casias was not using a drug illegally. And while under federal law, marihuana is an illegal schedule 1 drug, the U.S. Department of Justice announced in 2009 that it did not consider state legalized medical marihuana use a crime to be prosecuted. So does this change the analysis? Probably not - a schedule 1 drug is a schedule 1 drug, whether there is enforcement or not.
  3. But I suspect that Mr. Casias was not fired per se for using a schedule 1 drug. Rather he was fired for having a by-product associated with a schedule 1 drug that showed up in his drug test. As noted in an earlier post, Michigan's highest (pun intended) court in People v. Feezel, (2010) expressly held that (at least certain) by-products are not a schedule 1 drug in the context of operating a motor vehicle. In the Feezel case, the Michigan Supreme Court reversed a criminal defendant's conviction for operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death.
  4. Notably, the Feezel Court referenced the Medical Marihauna Act and highlighted that without its limitation, "individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired ..." Further, Feezel noted that at the time the issue was considered, no federal courts had concluded that by-products were "a controlled substance." 

So returning to the ADA, as a reasonable accommodation, what if Mr. Cassia asked to be exempted from drug test screening for marihuana "by-products" only as opposed to actual marihuana or other illegal substances? 

Also, assuming marihuana is not addictive, is the preceding accommodation made more compelling in light of the risks involved with addiction to prescription pain medication? For example, the Washington Post reported a 2010 government substance abuse study found substance abuse treatment admissions involving prescription narcotics increased more than fourfold between 1998 and 2008, from 2.2 to 9.8 percent. 

Does Michigan's Persons with Disability Act Allow for an Employee's Use of Medical Marihuana? 

Also, how would the result have changed if Mr. Cassias filed suit under Michigan's Persons with Disabilities Civil Rights Act, MCL § 37.1101, which is the state equivalent to the ADA. Under Michigan's Persons with Disability Act, there is no provision defining "reasonable accommodation" and the only limitation on an accommodation is the requirement that the accommodation may not impose an "undue hardship" on the employer.

There is an argument to be made that nothing in the text of Michigan's Persons with Disability Act to support the proposition that a requested accommodation is unreasonable if it involves off-duty conduct by the employee away from the job site that is expressly protected from criminal sanction under state law but is criminal under federal law. Conversely, there is nothing in the text of the statute to support the proposition that an employee's accommodation to use an illegal (under federal law) schedule 1 drug is a reasonable accommodation.  

It should be noted that the few decisions outside of Michigan that have addressed the issue of whether an employer must accommodate an employee's use of marihuana for medicinal purposes have sided in favor of the employer. See e.g., Ross v Ragingware Telecommunications, Inc. (California 2008) (Plaintiff did not state a claim under the state's employment discrimination laws based on the employer's refusal to accommodate use of medical marijuana); Johnson v Columbia Falls Aluminum, Co., LLC (Montana 2009) (employer's failure to accommodate use of medical marijuana did not violate Montana's Human Rights Act)

Closing Thoughts

The above issues have simply not been addressed in Michigan: Cassias was the first case to address the interplay of Michigan's medical marihuana statute and the employment relationship, but it did not involve any ADA or Michigan Persons with Disabilities Civil Rights Act claims. Therefore, trying to offer a meaningful discussion and analysis on these issues was probably best summed up by Yogi Berra: "It's tough to make predictions, especially about the future." For all I know, a Judge hearing these legal theories may wonder if I was high in coming up with them in the first place (I wasn't ... really).

If I was a betting man, based on decisions from outside of Michigan addressing the interplay of employment and use of medical marijuana, I think employers have the upper hand. Still, there are a number of issues that employers should continue to monitor. And in the meantime, if you're a certified medical marihuana patient, "smoke 'em if you got 'em" but you may not have a job afterwards.  

Comments (3)

Read through and enter the discussion by using the form at the end
Ari Lieberman - September 16, 2011 4:56 PM

It may also be worth considering the definition of "illegal use of drugs" contained in the ADA, which seems to carve out an exception when the drug is taken "under supervision of a licensed healthcare professional." Therefore, if medical marijuana is taken "under supervision" of a doctor (i.e. recommended for medical use), then the drug may not be "illegal" under the definition in the ADA. Accordingly, if an employee is fired solely for the use of his/her off-the-jobsite use of medical marijuana, such use alone would not bar the employee from succeeding with a cause of action for violation of the ADA.

See my article:
Ari Lieberman & Aaron Solomon, “A Cruel Choice: Patients Decide Between Medical Marijuana and Employment,” Hofstra Labor & Employment Law Journal, Vol. 26, No.2, 619 (Spring 2009).

Jason Shinn - September 17, 2011 2:20 PM

Thanks for the comment and link to your article. Doesn't the fact that marijuana is an illegal drug under federal law - regardless of whether state law permits its use - eliminate the carve out exception referenced and further preclude an ADA claim?

Ari Lieberman - October 1, 2011 12:02 AM

The definition of "illegal use of drugs" contained in the ADA (42 USC 12111[6][A]) is:
"The term 'illegal use of drugs' means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act....Such term does not include the use of a drug taken under supervision by a licensed healthcare professional, or other uses authorized by the Controlled Substances Act, or other provisions of Federal law."

I believe that the definition can quite easily be interpreted to create 2 separate exceptions to 1 general rule. The general rule is that if the drug is unlawful under the CSA, it's "illegal" under the ADA. However there are 2 exceptions contained in the second sentence, and the exceptions are separated by an "or." The first exception to the general rule is that if the drug is "taken under supervision by a licensed healthcare professional," then such use is not "illegal" under the ADA. Therefore, although marijuana is a drug, the use of which is unlawful under the CSA, since medical marijuana is "taken under supervision of by a licensed healthcare professional" then the user is not taking an "illegal" drug for purposes of the ADA. Accordingly, an otherwise qualified employee would not be precluded from the protections of the ADA solely for the use of medical marijuana

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