Are Your Employees Going to Pot? According to the Numbers, Probably
The Detroit Free Press reported on April 21, 2011 (by Dawson Bell and John Wisely) that approximately 63,735 Michigan residents had registered to use marihuana for medical purposes under Michigan's Medical Marihuana Law (Michigan spells marihuana with an "h", rather than a "j"). There is also over a five-month backlog in issuing registration cards.
Based on the numbers, it is likely that among those registered or waiting to become registered to use marijuana for medicinal purposes at least a few are employees. And this raises a number of issues central to the relationship between employers and employees.
Michigan's Medical Marihuana Act (the Marihauna Act), however, does not necessarily answer these issues. This is because it is both a relatively new statute - meaning many issues have yet to be resolved - and it has been widely criticized for its lack of clarity and contradictory provisions. See Judge Peter D. O'Connell's thorough analysis of these problems in his concurring opinion in People v Redding.
Nonetheless and to paraphrase the former Secretary of Defense Donald Rumsfeld: "There are known knowns ... [and] There are known unknowns ..." that are important to consider for both employers and employees.
Known Knowns Employers Should Consider
First, the starting point for what is "known" is the Marihauna Act and what it actually provides:
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 professional licensing board or Bureau for the medical use of marijuana in compliance with the Act.
Second, an employer is not required to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.
Third, marijuana is classified as a schedule I Drug under federal law. 21 § USC 812(c). This, ironically, means there is no accepted medical use for drugs in this category. Thus, federal law prohibits the manufacture, distribution, and possession of marijuana - regardless of a contrary state law like Michigan's Medical Marihuana Act.
Fourth, in February 2009, the U.S. Justice Department directed federal prosecutors to discontinue prosecuting individuals who use or supply marijuana for medical use in compliance with their state's law.
Known Unknowns Employers Should Consider
As noted above, an employer is not required to accommodate the ingestion of marihauna in any workplace or any employee working under the influence of the substance.
But what does "under the influence" mean? It is not defined under the statute. And a "hypothetical" situation highlights this problem.
Consider John Doe employee who works Monday through Friday, as a sales associate in a big-box retail store, who happened to be employee of the year in 2008, but has since been diagnosed with sinus cancer and a brain tumor.
Now consider John Doe tokes up a joint over the weekend to alleviate his pain. Experts have testified in court that on average certain marihauna by-products could remain in a person's blood for 18 hours and in a person's urine for up to 4 weeks. Now consider a week later Mr. Doe is given a drug test by his employer. Not surprisingly the drug test is positive for marihuana use. Is that under the influence?
While not an employment case, People v. Feezel, (2010) potentially offers some insight as to what "under the influence" means. In that case, Michigan's highest court (pun intended) reversed a criminal defendant's convinction for operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death.
The reversal was required because the defendant did not actually have a schedule 1 drug in his system but rather "11-carboxy-THC, a byproduct of metabolism created when the body breaks down the psychoactive ingredient of marijuana." The Court concluded that this by-product was not a schedule 1 controlled substance under Michigan's motor vehicle statute and, therefore, a person cannot be prosecuted for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system.
Notably, in reaching its decision, the Court referenced the Medical Marihauna Act and highlighted that without its distinction between marihuana and by-products, "individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired ..."
So under Feezel, the presence of - at least - certain by-products does not equate to marihuana or impairment. What does this conclusion mean for drug test screening the same or similar by products? Also if the presence of a marihauna related by-product in a person's system is not criminal impairment in the operation of a motor vehicle, what about an impairment in the employment context? Does it matter if the employee is a receptionist, data processor, or operating power machinery?
No Michigan state court has addressed the issue of "under the influence." And the few cases outside of Michigan (California, Montana, Oregon, and Washington) that have generally considered the issue of whether an employer must accommodate an employee's use of marijuana for medicinal purposes have gone in favor of the employer, including the February 2011 opinion from a Michigan federal district case in Cassias v Wal-Mart.
For both employers and employees with serious illnesses, having to make the choice of how to respond to these unsettled issues is challenging to the say the least. And from an individual's perspective, it certainly seems unfair to be in a position to have to choose between discontinuing marijuana treatment that may be the only alleviation of pain or continued employment.