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.