Job offers in Michigan can be rescinded for Medical Marijuana positive testing

By Anthony Kaylin, courtesy SBAM Approved Partner ASE

According to a recent (April 23rd) case from the Michigan Appellate Court located in Ingham County, a job offer may be revoked if the applicant tests positive for marijuana, even if it is considered medical marijuana.

In Eplee v. City of Lansing and Lansing Board of Water and Light, Eplee was a qualifying patient under the Michigan Medical Marijuana Act (MMMA) with a valid registry identification card when she was interviewed on April 28, 2017, by the Lansing Board for Water and Light (BWL) for a full-time position. 

On May 1, 2017, BWL made the plaintiff a conditional offer of employment, which included a condition that the plaintiff comply with BWL’s drug testing policies. The applicant submitted a drug screen in accordance with these policies and also immediately informed a BWL supervisor and her contact person during the hiring process, that she was a registered qualifying patient under the MMMA.

As it turns out, Eplee tested positive for tetrahydrocannabinol (THC), and BWL rescinded the offer of employment.  Eplee then had her lawyer send a letter to BWL stating that the employment offer could not be rescinded solely on the basis of her status as a registered qualifying patient.  The lawyer for BWL then sent a letter to Eplee’s attorney stating that her employment offer would not be reinstated due to “the needs of the department” and further denying that the plaintiff’s offer was rescinded based on her status as a registered qualifying patient.

Eplee sued and alleged that defendants had “no legitimate business reason” to rescind her conditional offer of employment and that the conditional offer was rescinded solely because of her status as a registered qualifying patient. Eplee alleged that she had a breach-of-contract claim because she accepted BWL’s conditional offer of employment, and BWL agreed to employ her in exchange for her “satisfaction of the conditional offer of employment.”  In other words, her employment by BWL was a confirmed right.  She further alleged that she satisfied all conditions of the offer and that the defendants breached the contract by illegally rescinding the conditional offer. 

BWL argued among other things that the MMMA does not prohibit employers from maintaining zero-tolerance drug policies for their applicants and employees.  Additionally, BWL argued that they were entitled to summary disposition on Eplee’s breach-of-contract claim because such a claim could not be premised on the loss of at-will employment.

The trial court gave summary judgement to BWL.  On appeal, the Appellate Court upheld the trial court ruling.  The Court stated that “[a]n individual must show some pre-existing entitlement or right or benefit that has been lost or denied … before it can be said that the loss or denial of that benefit constitutes a penalty or the denial of a right or privilege under the MMMA.”  The court noted that Eplee could not “point to any legal right that she had to be employed by BWL.”  The Court further stated that even though she had a conditional job offer, that does not act as a right or property interest that she lost. The conditional offer was for an at-will position, which meant BWL could terminate her employment or her offer for any or no reason at all, regardless of her medical marijuana status.

ASE will follow this case to see if it will be heard by the Michigan Supreme Court.