Today is April 20, 2015. However, for certain individuals who partake in smoking a plant in the cannabis genus, it is also “420.” The use of “420” has historically been a shorthand reference to recreational marijuana smoking. However, as more states enact laws legalizing marijuana use for medical conditions, employers may need to reassess their workplace policies on drug testing and reasonable accommodation of medical conditions. Traditionally, employers have been told that because marijuana is still illegal under federal law and federal law trumps state, it didn’t matter how your state treated medical marijuana use, there was no requirement to accommodate such use. But that answer may not be so short or needs an “asterisk.”
The Current National Landscape for Medical Marijuana
According to CNN, 27 states and the District of Columbia have either legalized medical marijuana or decriminalized marijuana possession — or both. In 2008, Michigan voters overwhelmingly voted to approve a medical marijuana ballot measure, the Michigan Medical Marihuana Act (Michigan – being the counter-culture state it is – Michigan opted to spell marijuana using an “h” (marihuana), which is also the same spelling in the Michigan Public Health Code).
Michigan’s Act permits an individual with a qualifying debilitating medical condition to register as a medical marihuana patient with the state and avoid criminal penalties under state law for certain medical uses of marijuana. More information about Michigan’s registration program and Act is available here.
However, despite efforts at the state level, marijuana or, more specifically, cannabis continues to be listed as a Schedule I of the Controlled Substances Act under Federal law. This is the most tightly restricted category reserved for drugs which have “no currently accepted medical use.” The Schedule I listing of marijuana creates an irreconcilable conflict between state and federal law in terms of marijuana being legal. In other words, one could lawfully be using marijuana in Michigan or any other state where the substance has been legalized, but still be guilty under federal law for using an unlawful substance.
Employer Obligations When it comes to Medical Marijuana Use and Employees and Downstream Issues
Because marijuana use is still illegal under federal law, and such law preempts state law, the short answer to employer questions about whether they need to accommodate an employee’s medical marijuana use in the workplace has usually been “no.” See Medical Marijuana & Employment Law: Unanswered Questions For Employers and Employees. This general rule remains true, but there may be downstream issues that employers may need to consider when making employment terminations based on medical marijuana use.
Specifically, I was having a lunch with a friend who works in insurance last week. She explained a recent situation where one of her customers had fired an employee for failing a drug test when it came back positive for marijuana use. However, at the time of the registration, that employee was also properly registered under Michigan’s medical marijuana act to use it. But again, the employer relied upon the distinction that under federal law, marijuana is still illegal.
Instead of that being the end of it, the terminated employee filed for unemployment. Normally, an employee is disqualified from receiving unemployment benefits if he or she was fired for misconduct in connection with the work. And illegal drug use has historically been used as such a disqualifier. But in this particular instance, apparently there was an administrative determination that the terminated individual was not disqualified for failing the drug test because at that time he was (under Michigan law) lawfully using marijuana for medicinal purposes.
A review of the Michigan Unemployment Insurance Agency’s employee/employer resources and related administrative materials did not produce any insight as to whether this result is the product of an agency-wide position. More likely, it may simply be one case decided on its own set of facts by one person at the agency.
Even so, employers should still enjoy (for now) the general rule that there is no legal obligation to accommodate an employee’s medical marijuana use because it remains illegal under federal law. But, like most things when it comes to employment law, employee use of medical marijuana may require a closer look in order to make an informed decision and/or to evaluate downstream issues.
For more information about Michigan employment law issues, including investigating workplace misconduct or addressing employee accommodations, contact Jason Shinn.