July 6, 2010
Medical marijuana law in Michigan runs into workplace rule
Employers not required to allow marijuana use
BY GINA DAMRON
FREE PRESS STAFF WRITER
If a recently filed medical marijuana lawsuit reaches the Michigan Court of Appeals or state Supreme Court, it could produce a precedent-setting decision that impacts employers and patients, whose jobs may be at risk even when legally using the drug. Joseph Casias — a 30-year-old Battle Creek resident who legally uses marijuana — filed a lawsuit last week against Wal-Mart in Calhoun County Circuit Court after being fired for testing positive for pot during a drug test.
A Wal-Mart spokesman last week said that the corporation has a zero-tolerance policy when it comes to drug use and follows federal law, under which marijuana is illegal.
“We’ve been waiting for this,” Kurt McCammon, a lawyer with Miller Canfield who specialize in employment law, said of the lawsuit.
The case, he said, may help determine whether “an employer in the state of Michigan is required to permit an employee to use medical marijuana outside the workplace and then come into the workplace with some levels of marijuana in their system.”
The lawsuit is the only known of its kind in Michigan, according to several lawyers and a state official, but Casias isn’t the only person to complain.
The Michigan Department of Civil Rights has two active investigations involving people claiming they were not hired for jobs after disclosing they are medical marijuana users, said Harold Core, a spokesman for the department.
The state’s disabilities act says employers can establish policies regarding the use of illegal drugs, which Core said may not apply to the legal use of marijuana.
Core said a court opinion could help clarify the state medical marijuana law.
“It’s new legislation,” he said. “It’s still kind of murky.”
Sections of law hazy
Michigan voters approved the medical marijuana law in 2008, but some parts of the act may be open to interpretation, some say.
The act says a person shall not be subject to “disciplinary action by a business or occupational or professional licensing board of bureau” for using marijuana in accordance with the act. But it also says the law doesn’t require an employer to accommodate the ingestion of the drug in the workplace or an employee working while under the influence.
Add to that the fact that marijuana is illegal federally — though President Barack Obama directed the U.S. Justice Department to stop using federal resources to prosecute medical marijuana cases — and that there is no legal standard for measuring marijuana impairment and the issue can become murky, said Melanie Brim, director of the Bureau of Health Professions within the Michigan Department of Community Health. “At this point it’s wide open for interpretation,” she said. “And when you get wide open for interpretation, somebody at some point … is going to feel like they need a legal opinion.”
And that’s just what could happen.
Before filing his lawsuit, Casias contacted the Michigan Department of Civil Rights and a file on his complaint was opened March 4, said Harold Core, a spokesman for the department. But Casias never returned a signed, notarized copy of his complaint, Core said. Core said the department has been contacted by about 13 people on medical marijuana-related complaints ranging from issues with public accommodation or employers to law enforcement. Only two investigations are currently active, he said. “Our job, basically, is to look into allegations and determine what the law says,” Core said.
Richard Hurford, a Bloomfield Hills-based lawyer with Ogletree Deakins who specializes in labor and employment law, said until the state law says employers must accommodate the use of medical marijuana, many will continue strict drug-use policies because marijuana is illegal under federal law.
He said about a dozen employers he represents had to fire employees because of medical marijuana use, but no lawsuits have been filed against his clients. “All employers have an obligation under federal and state law to provide a safe workplace,” Hurford said. And some say Michigan’s law can be interpreted to allow employers to have zero-tolerance drug use policies.
Greg Rossiter, a spokesman for Wal-Mart, said the corporation has such a policy and also requires drug screens when an employee is injured in the workplace.
“To make sure they weren’t impaired,” he said.
Casias injured himself at work, was taken for treatment and given a drug test. Dan Korobkin, a staff attorney with the ACLU of Michigan — which is representing Casias, along with the national ACLU and another law firm — said Casias never used marijuana at work and never showed up for work impaired.
He said the lawsuit will send a message. Even though Wal-Mart is “a very large corporation,” he said, “they don’t write the laws.”
But even if Casias’ case makes it to the state Supreme Court, there’s no guarantee of an opinion that’s favorable to patients.
In April, the Oregon Supreme Court ruled that workers who use medical marijuana can still be fired for drug use because the state law had to yield to federal laws controlling illegal drugs, according to a news report. And in 2008, it was reported that the California Supreme Court also ruled in favor of employers, saying workers can be fired, even if they are using medical marijuana legally.
But Korobkin said he believes Michigan’s law “clearly protects patients from being disciplined by their employers.”
But some disagree.
Kurt Sherwood, a lawyer with Miller Canfield who specializes in labor and employment law, said he believes the act was designed primarily to protect people from criminal prosecution — not to prohibit employers from enforcing drug policies. But the law, he said, can be interpreted in different ways. “It raises an awful lot of questions,” Sherwood said, “and it’s placing employers in a very untenable position.” Casias said he wants to see his case help protect some of the 20,000-plus other medical marijuana patients across Michigan. “I’m hoping,” he said, “that other people don’t get fired for the same thing.”
Contact GINA DAMRON: 586-826-7269 or email@example.com