DIFFERENT TOKES FOR DIFFERENT FOLKS
Differing laws on workplace drug policies and medical marijuana use challenge employers, workers
QUESTION: A prospective employee, who recently moved to Michigan from Connecticut, tested positive for marijuana at a pre-employment screening. When I informed him that he would not be hired due to the positive result, he became very upset, stating he used marijuana for the treatment of epilepsy, and showed me his medical marijuana card from Connecticut. I told him that our company has a strict anti-drug policy, and testing positive for marijuana, even medical marijuana, is a violation of that policy. He claimed our policy is against the law. If our policy isn’t up-to-date with current law, I’d be happy to hire him: Apart from the medical marijuana use, he was a very well-qualified candidate. What’s the story?
ANSWER: Your policy is fine under Michigan law, which allows an employer to discharge a worker for testing positive for marijuana – even medical marijuana. Michigan is one of 14 states that permit employers with a strict drug-free workplace policy to terminate or refuse to hire workers who test positive for marijuana, even though marijuana is legal for recreational and medicinal use.
It’s not surprising that your employee feels he’s been treated unfairly. Connecticut’s medical marijuana law – the Palliative Use of Marijuana Act – prohibits discrimination against employees on the basis of status as a “qualifying patient.” But even in Connecticut, employers are allowed to prohibit medical marijuana use during workplace hours, and can discharge employees who are under the influence of marijuana while at work. C.G.S. §21a-408a(b)(2).
Medical use of marijuana is now legal in 33 states; recreational use is allowed in 11 of these states. With each state setting its own rules on how employers may treat the fact that an employee has a medical marijuana card, or tests positive for marijuana solely because of medical use outside of work, the likelihood of a misunderstanding of what is or is not allowed is increasingly likely – a fact made even more likely where state laws themselves are sometimes seem contradictory.
A 2010 law in Arizona, for instance, protects workers from discrimination for use of medical marijuana, but a 2011 amendment to that law carves out an exception if an employee is in a “safety sensitive role” and the employer has a good faith belief the worker has been impaired during work hours. Confusion over the law put a nurse at risk of losing his job when he decided to begin using medical marijuana for back pain, and advised his employer. He was informed he would be discharged for any positive test for marijuana.
Michigan’s law allows employers to refuse to hire, discharge, discipline or otherwise take “an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marihuana [sic].” MCL 333.27954(3). But, even legislative permission to fire employees who test positive for whatever reason, will not protect employers from some consequences for terminating an employee with a medical marijuana card who tests positive for marijuana, but who shows no sign of being under the influence of marijuana at work, and who has not used marijuana at work. Under a 2014 case, the employer could still be on the hook for unemployment benefits for the fired worker, depending on the circumstances.
Employers and employees should be on notice that they need to be familiar with the law in the state in which they work. Employers are advised to inform potential new hires, well before a requiring a drug test, of the consequences of a positive result.
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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law