Federal Appeals Court: Private employers are not subject to the Michigan Marihuana Act

Article courtesy of SBAM Approved Partner ASE

By Gary Klotz

On September 19, the federal Sixth Circuit Court of Appeals ruled that the Michigan Medical Marihuana Act (MMMA) “does not regulate private employment” and, accordingly, does not protect an employee “against disciplinary action by a business.”

Recall that Michigan passed the MMMA, which provides certain protections for the medical use of marijuana, in 2008. For private sector employers, the key question about the MMMA has been whether the MMMA protects an employee with a medical marijuana card from disciplinary action by the employer under its work rules or drug testing policy.  Affirming a decision by a trial court, the Sixth Circuit has now answered that question.

In June 2009, Joseph Casias was issued a medical marijuana card.  In November 2009, his employer, Wal-Mart, tested him for drugs after an on-the-job injury.  Mr. Casias tested positive for marijuana, and Wal-Mart discharged him under its drug testing policy, which made no exception for the MMMA.

Mr. Casias filed a lawsuit in which he alleged that “Wal-Mart’s application of its drug use policy to him violated” the MMMA.  He claimed that the MMMA “creates a new public policy in the State of Michigan that prohibits a private employer from taking disciplinary action against an employee based on conduct protected – or at least arguably protected – from criminal prosecution under the MMMA.”

The trial court dismissed the lawsuit on the following basis:  “…the MMMA addresses potential adverse action by the state; it does not regulate private employment.”  The MMMA only provides a “potential defense to criminal prosecution or other adverse action by the state.”  The MMMA, however, “says nothing about private employment rights.  Nowhere does the MMMA state that the statute regulates private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside of the workplace.”  Further, the MMMA “contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses.”

The Sixth Circuit Court of Appeals agreed with the trial court and found that the “MMMA does not impose restrictions on private employers….”  It stated as follows:  “The statutory language of the MMMA does not support” the “interpretation that the statute provides protection against disciplinary actions by a business, inasmuch as the statute fails to regulate private employment actions.”  The appeals court also rejected Mr. Casias’ argument that due to the MMMA, his discharge was “contrary to public policy.”  It observed that accepting Mr. Casias’ public policy argument “could potentially prohibit any Michigan business from issuing any disciplinary action against a qualifying patient who uses marijuana in accordance with the Act.”

For Michigan employers, this decision means that the MMMA does not regulate private employers or, as the trial court stated, “create a new protected employee class in Michigan” – an employee with a medical marijuana card. Accordingly, a Michigan employer can lawfully enforce its work rules against the use of drugs and its drug testing policies against employees who have medical marijuana cards under the MMMA.

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