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Employees with medical marijuana cards, fired after failed drug test but with no evidence of use at work, can collect unemployment

In several related cases, Republican appointees to the Michigan Compensation Appellate Commission (MCAC) had refused unemployment benefits to fired employees with medical marijuana cards.  Each of the employees had failed a drug test evidencing "trace-", "metabolized," or "above-average" marijuana presence, after random or employer-ordered drug tests.  There was no evidence of drug use in the work environment of any employee.  The reasons for procuring the cards varied from lupus disorder to chronic or post-surgical pain.  Nevertheless, the MCAC held that possession and utilization of a medical marijuana card--even if drug use was limtited to the employee's own time--was a violation of the respective employers' "zero tolerance" policies and ground for denial of unemployment.  Unemployment benefits are lost, by statute, only if the employee is guilty of "misconduct."

Several Circuit Court judges had ruled on the issue of unemployment qualification, and in these cases under scrutiny, the MCAC appealed the various judges' decisions upholding the right to unemployment benefits.  The trial court judges had relied upon language in the adoption of the medical marijuana law that prohibited the State from "penalizing" the use of medical marijuana.  The MCAC argued that the terminated employees were not penalized for using medical marijuana, but rather for failing a drug test.

The Court of Appeals unanimously rejected this exercise in "linguistic gymnastics."  It noted that while the courts have confirmed that private employers may penalize, punish or terminate workers for legal medical marijuana use, by statute the state may not.  The Court noted that all of the employees were "qualified" to collect unemployment benefits by statute, and there was no evidence of misconduct or drug use at work.  The high court judges noted that the MMMA, legalizing the use of medical marijuana, established the valid medical use of marjuana and precluded the state from "arresting, prosecuting or penalizing [any patient] any manner, or denying to any patient any right or privilege."

The judges rejected the absurdity of arguing--as the government appointees suggested--that "disqualification" is not a "penalty," and pointed to the plain language of the act, which must be enforced.

Thompson O’Neil, P.C.
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