On February 19, 2019, the Michigan Court of Appeals considered whether a job applicant rejected for a position due to a positive test result for marijuana could sue under the state’s Medical Marihuana Act (MMA). At issue was the following from the MMA:
“A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act . . . .”
In an unpublished decision, the court affirmed dismissal of the complaint finding that the MMA “does not provide an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class for users of medical marijuana.” (The court converted the decision to a published decision on April 23, 2019.) In addition, the court noted that because the City “would have been able to terminate plaintiff’s employment at any time after her employment began for any or no reason, it logically follows that the [City] could rescind its conditional offer of employment at any time and for any or no reason at all.” In other words, the plaintiff had no “right” to a job with the City and, thus, had no basis to bring suit under the MMA. Of course, this leaves open the question of whether the case would have turned out differently had the plaintiff been offered something other than an at-will position. Importantly, nothing in the decision suggests that its analysis is limited to public entities and, thus, private employers may benefit from its reasoning as well.
The medical cannabis laws in the United States vary greatly. Some states, like Connecticut, Maine and Massachusetts, have ruled that an employee testing positive for cannabis can bring suit against an employer for enforcing their drug-free workplace policies. Additional states provide employment protections to medical cannabis users, including Arizona, New York, and others. Thus, it is difficult for employers to have a “one-size-fits-all” policy regarding cannabis use. Employers are encouraged to work with experienced employment counsel before taking action against a medical cannabis user and continue to monitor developments in this evolving area of law.