Michigan Lawmakers Continue to Address Medical Marijuana Law Questions

YellowQuestionMark.jpgThe Detroit Free Press (by Dawson Bell) reported that Michigan's Attorney General, Bill Schuette, and a coalition of lawmakers and prosecutors are calling Michigan's medical marijuana law so poorly drafted as to be unworkable.

The focus of this criticism in large part is on the legality of medical marijuana dispensaries, the definition of a "locked facility," and the nature of the doctor-patient relationship with respect to obtaining authorization for a medical marijuana card.

What is not discussed, but is equally important, are issues at the intersection of employment and use of medical marijuana.
As previously discussed, a Michigan federal district court ruled in favor of an employer, Walmart, when it discharged an employee who was also an authorized medical marijuana patient. 

While these issues are certainly important, it is equally important to employers and employees for lawmakers to address the use of medical marijuana off duty or during nonworking hours.

As previously discussed, a Michigan federal district court ruled in favor of an employer in a case involving Michigan's medical marijuana statute. In that case, Walmart discharged Mr. Cassia after he tested positive for marijuana use. At the time of the drug test, Mr. Cassia was an authorized medical marijuana user because of his sinus cancer and a brain tumor. He did not use marijuana while working. The case, however, is presently on appeal. 

That case only challenged the termination on the basis that it violated an implied right to use marijuana for medicinal purposes during off-duty hours as a violation of Michigan's public policy (as set forth in the Michigan Medical Marihuana statute). It did not involve the Americans with Disability Act or Michigan's state law equivalent, the Persons with Disabilities Civil Rights Act, MCL § 37.1101.

Both of these statutes involve providing "reasonable accommodations" in order to provide employment opportunities for persons with disabilities. Certainly "toking up" on the job would not be a reasonable accommodation. But the real uncertainty for employees and employers is how to treat drug test that are positive for marijuana by-products. Such products may show up weeks after the initial ingestion.

On that issue, the Michigan Supreme Court expressly held that (at least certain) by-products are not an illegal (schedule 1) drug in the context of operating a motor vehicle. Notably, the 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, the Court noted that at the time the issue was considered, no federal courts had concluded that by-products were "a controlled substance."

So what does this mean for Michigan employers and employees? That is a question Michigan lawmakers should certainly answer for the benefit of both employers and employees. Otherwise both are left uncertain as to their rights and responsibilities when it comes to using medical marijuana and the employment relationship. 

A Road Map for Responding to Requests for Accommodations under the Americans with Disability Act

Road Map.jpgA common issue under the Americans with Disabilities Act concerns asking for and responding to a request for a reasonable accommodation.

It is important for employers to understand their obligations in responding to such a request because under the ADA unlawful discrimination specifically includes "not making reasonable accommodations [for a] qualified individual with a disability..." 42 USC 12112(b)(5)(A).

Making and Responding to a Request for a Reasonable Accommodation

  1. An employee generally has the initial burden of putting the employer on notice that deficiencies in his or her performance are related to an ADA disability, proposing an accommodation, and showing that that accommodation is objectively reasonable. But this general rule has exceptions: Employers have been required to initiate the interactive process even if the employee does not request accommodation where the employee’s disability and its adverse impact on job performance are obvious. Brady v Wal-Mart Stores, Inc (2008) (Employee had cerebral palsy, which manifested itself in noticeably slower walking and speech).
  2. The EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship provides that a: "... modification or adjustment is 'reasonable' if it 'seems reasonable on its face, i.e., ordinarily or in the run of cases;' this means it is 'reasonable' if it appears to be 'feasible' or 'plausible.' An accommodation also must be effective in meeting the needs of the individual." 
  3. To determine the appropriate reasonable accommodation it may be necessary for the employer and employee to engage in an informal, interactive process. 29 C.F.R. § 1630.2(o)(3) (2010). The EEOC Regulations provide that this process should focus on: 
    • Analyzing the particular job involved and determine its purpose and essential functions;
    • Consulting with the employee with a disability to determine the precise job-related limitations imposed by the employee's disability and how those limitations could be overcome with a reasonable accommodation;
    • Identifying potential accommodations and assessing the effectiveness each would have in enabling the employee to perform the essential functions of the position; and
    • Considering the preference of the employee to be accommodated and selecting and implement the accommodation that is most appropriate for both the employee and the employer.
  4. If the plaintiff establishes that a reasonable accommodation is possible, the employer bears the burden of proving how the accommodation would cause an undue hardship on the operation of the business. 42 U.S.C. § 12112(b)(5)(A). The ADA defines "undue hardship" to mean "an action requiring significant difficulty or expense, when considered in light of the [following] factors": 
    • The nature and cost of the accommodation needed;
    • The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
    • The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
    • The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 42 U.S.C. § 12111(10). 
  5. Employers should carefully and critically assess whether an accommodation is an "undue hardship  because a court will often engage in an individualized inquiry to ensure that the employer's justifications "reflect a well-informed judgment grounded in a careful and open-minded weighing of the risks and alternatives . . .". Johnson v. City of Pontiac, (E.D. Mich. 2007). Also, courts will reject an employer's "undue hardship" argument if it is not supported with specific facts. See Smith v. Henderson, (6th Cir. 2004) (employer failed to set forth "specific facts indisputably demonstrating that ... the accommodation would have resulted in 'significant difficulty or expense.").

While these topics will be an important starting point for employees and employers to meaningfully participate in the interactive accommodation process under the ADA, any such issues should be addressed with competent legal counsel. 

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.