Are Michigan employers at risk of being sued for violating rights of individuals who are authorized medical marijuana users? A case from Connecticut under that state’s law suggest the answer may be yes.
Specifically, a Connecticut federal court found an employer guilty of employment discrimination after it refused to hire a medical marijuana user.
The employer, SSC Niantic Operating Company LLC, offered the plaintiff a job contingent on her passing a pre-employment drug test. The plaintiff told SSC Niantic she was a registered qualifying patient under the Connecticut Palliative Use of Marijuana Act (PUMA) and used the drug since 2015 to treat post-traumatic stress disorder.
After the pre-employment drug test came back positive, the plaintiff was not hired. In refusing to hire her, SSC Niantic relied upon federal law providing that marijuana is illegal, irrespective of state law.
The plaintiff filed a complaint in state court. She alleged, among other claims, SSC Niantic violated PUMA’s anti-discrimination provision. The court eventually agreed ruling defendant’s rescinding of plaintiff’s job offer was contrary to her right not to be subject to discrimination because of her status as a qualifying medical marijuana patient under PUMA.
High Time for Michigan Employers to Reconsider Medical Marijuana?
Like Connecticut, Michigan’s voters adopted a medical marijuana law called the Michigan Medical Marihuana Act (MMMA) (yes, Michigan spelled “Marihuana” with an “h”) and yes our acronym is considerably less cool than PUMA, but I digress).
The Connecticut opinion, Noffsinger v. SSC Niantic Operating Co., LLC, discusses many defense arguments the court rejected and is worth discussing with your company’s employment counsel. But the main thrust of the company’s defense is that under federal law, except for limited and controlled research, all undertakings involving the cultivation, distribution, and use of marijuana are criminal acts. But again, this logic and associated defenses were rejected.
The significant points we will be discussing with our business clients are (i) how to respond to an employee with an authorized medical card; an (ii) whether they should continue to rely exclusively on federal law as a basis for making hiring and firing decisions or if Michigan law should also be considered.
Michigan’s medical marijuana act may not be construed to require an employer to accommodate the ingestion of the drug in any workplace or to accommodate any employee working while under its influence. However, the Connecticut Court appeared to reject a similar argument noting the Federal Drug-Free Workplace Act did not protect the employer because it did not regulate employees who use illegal drugs outside of work while off-duty.
Additionally, Michigan voters will decide in November whether to legalize marijuana under the ballot proposal titled the Michigan Regulation and Taxation of Marijuana Act (MRTMA). This proposal would authorize the possession and nonmedical use of marijuana by individuals aged 21 and older.
Accordingly, employers must be ready to understand how these laws affect their workplaces. For more on these issues, contact Michigan employment attorney Jason Shinn. Since 2001, he has represented clients, both individuals, and companies, in addressing federal and Michigan employment law issues.