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Zero Tolerance Discharge for Medical Marijuana Does Not Deny Unemployment Benefits

A Workplace Law Client Alert

By: Bodman's Workplace Law Practice Group


Employees with a valid medical marijuana card under the Michigan Medical Marihuana Act (MMMA) discharged for testing marijuana positive are not disqualified from receiving unemployment benefits under the Michigan Employment Security Act (MESA), so says the Michigan Court of Appeals in Braska v. Challenge ManufacturingBraska involved consolidated cases in which three medical marijuana card carrying employees working for three different employers were denied unemployment benefits after being discharged for a positive drug test.
MESA disqualifies employees from receiving unemployment benefits for: (1) using or possessing illegal drugs on company property; (2) refusing to take a drug test; or (3) testing positive for illegal drugs. MMMA does not require employers to accommodate ingestion of marijuana in the work place or working under the influence. In Braska, none of the three employees were alleged to have used or possessed marijuana at work or to have been under the influence at work. Nor did any of them refuse to take a drug test.
The only issue was whether they were disqualified from unemployment benefits for a positive drug test. MMMA specifically provides that an individual with a medical marijuana card may not be subject to civil penalty. Denial of unemployment benefits was considered by the court as a civil penalty, and, therefore, not permitted. We anticipate this decision will be appealed to the Michigan Supreme Court. In the meantime, the Unemployment Insurance Agency will follow Braska
The Braska court noted it was not deciding whether the MMMA prohibits private employers from discharging an employee with a medical marijuana card for a positive drug test.  In an earlier decision, Casias v Wal-Mart Stores, Inc, 695 F 3d 428 (CA 6, 2012),  the Federal appeals court concluded that the MMMA did not apply to a private employer’s decision to fire an employee for using medical marijuana.
In summary, private employers may continue to enforce zero tolerance discharge for a positive drug test, including employees with a medical marijuana card. However, unless an employer has evidence that an employee ingested or possessed marijuana on the employer’s premises, refused to take a drug test, or was under the influence of marijuana while at work, the employee may be entitled to unemployment benefits.

Contact a member of Bodman’s Workplace Law Group if you have employment law concerns.

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