Publication Details

The Michigan Medical Marihuana Act - Employer Substance Abuse Policies Up In Smoke?

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Article Originally Published: September 2009

The information contained in this article is not intended to be legal advice. Readers should not act or rely on this information without consulting an attorney.

The Michigan Medical Marihuana Act (MMA) became effective on January 1, 2009. Under the MMA, persons certified as having certain "debilitating medical conditions" may obtain an identification card which shields them from arrest, prosecution or penalty for the medical use of marijuana. The MMA also prohibits a business from denying any right or privilege, "including but not limited to imposition of civil penalty or disciplinary action" for the medical use of marijuana. The Act also specifically provides that if a patient demonstrates the medical purpose for using marijuana, the patient may not be subject to disciplinary action by a business for that use.

Certain restrictions on the scope of the MMA are of assistance to employers. For example, the MMA does not require an employer "to accommodate the ingestion of marihuana in any work place or any employee working while under the influence of marihuana". In addition, the Act does not permit any person to 1) "undertake any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice," 2) possess or engage in the medical use of marijuana on any school, school bus or correctional facility, 3) smoke marijuana in any public place, or 4) "operate, navigate, or be in actual physical control of any motor vehicle, aircraft or motor boat while under the influence of marihuana".

The MMA does not prohibit drug testing of a person who is considered a "qualifying patient" under the Act. Thus, if an employee is determined to be under the influence of marijuana while working or is discovered smoking marijuana in the workplace, he/she could still be subject to discipline.

The MMA potentially interferes with an employer’s ability to enforce its substance abuse policies as to employees or applicants who have a positive drug test result but are not under the influence of marijuana. In such a situation, an employee or applicant who is a "qualifying patient" may argue that, based upon the MMA, he/she should not be disciplined or refused hire based upon the positive drug test result unless he/she were also determined to be under the influence of marijuana. Although court decisions addressing the same issue in several other states with medical marijuana statutes concluded that those statutes were not intended to affect employer policies requiring denial of employment, discipline or discharge for a positive drug test, the language of the MMA appears to provide for a narrower exception to any data to accommodate a "qualifying patient" than the statutes in those cases.

Nonetheless, as to "safety sensitive" employees whose activities are subject to the U.S. Department of Transportation regulations which mandate alcohol and drug testing as well as removal from "safety sensitive" duties in the event of a positive test result, the DOT regulations likely preempt the MMA. The applicable DOT motor carrier safety regulations preempt state law if compliance with state law and the regulations is not possible or the state law impedes enforcement of the regulations. Thus, a safety sensitive employee who is also a "qualifying patient" could still be removed from safety sensitive duties in the event that the employee tests positive for marijuana.

The impact of the MMA on an employer’s right to enforce its policies prohibiting the hire or retention of an individual with marijuana in his/her system will likely be the subject of future litigation and/or clarification. In the interim, employers should review their substance abuse policies and determine how they will deal with applicants and employees who assert rights as "qualifying patients".