The Hazy State of Employment Protections for Medical Marijuana Users Nacht & Associates, P.C. Attorneys Ann Arbor Michigan

The Hazy State of Employment Protections for Medical Marijuana Users

Posted by: David Blanchard
July 21, 2010
Topic: Employment Law

Michigan voters legalized the medicinal use of marijuana in 2008, and as of June 2010, about 20,000 Michigan residents have registered for the program. These medical marijuana users are explicitly protected from criminal prosecution, but the law is hazy on whether employers may not hire or even fire them because of their marijuana use.

In a recent and well-publicized case out of Battle Creek, Wal-Mart fired an employee, Joseph Casias, because he used marijuana off the job to treat his cancer. The ACLU has filed suit in the case, arguing that Wal-Mart could not fire Casias for using a legal medical treatment to relieve his pain. Whether Casias will succeed in court is unclear, and his uncertain predicament is common in the fourteen states that have legalized medical marijuana. Most of these states do not protect medical marijuana users from adverse employment actions. For example, the California Supreme Court ruled in the 2008 case Ross v. Ragingwire Telecommunications, Inc. that California employers were free to not hire or even fire an employee based on that person's state-authorized marijuana use. In April 2010, the Oregon Supreme Court held in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Indudstries that the state's disability antidiscrimination law does not protect the use of medical marijuana because, while such use is legal in the state, it is illegal under federal law. Oregon's high court identifies a source of confusion in all states with medical marijuana laws-even though these states authorize the use of marijuana for certain purposes, all use of the drug is still criminalized under federal law. With no clear guidance from the U.S. Supreme Court on whether state employment protections are preempted by federal criminalization, individual state courts must decide that question for themselves.

While other states' courts have found no such protection exists, the Michigan Medical Marijuana statute is unique. Unlike the medical marijuana laws of states like California and Oregon, Michigan's law includes explicit protections for employees. Under the statute, individuals carrying a medical marijuana card cannot be "denied any right or privilege including . . . disciplinary action by a business or occupational or professional licensing board." MCL 333.26424. The Michigan law also makes specific findings that suggest the voter initiative must be understood as public policy of the state. ACLU lawyers in the Casias case here latched onto this language in alleging that the firing of someone for their medical marijuana use is a discharge in breach of public policy.

The Hazy State of Employment Protections for Medical Marijuana Users