A Sliver of Daylight for Michigan Employees

The Michigan Supreme Court recently denied leave to appeal an October 2014 court of appeals ruling protecting the rights of cannabis patients to receive unemployment benefits when they are terminated for their use of the substance. That makes the Kemp decision (f/k/a Braska), the law of the land.

The legal implications are that, while you can be fired just for being a cannabis patient, because cannabis use in itself is not a protected class (think race, religion, age, etc.) you cannot be denied unemployment benefits so long as you were not using, in possession of or under the influence of cannabis while at work.

The practical implications are that, knowing they will have to pay higher unemployment benefits as a consequence of purging their work places of cannabis users, employers might just start thinking twice before turning somebody’s life upside down for no good reason.

What you should continue to be aware of if you are a medical cannabis patient employee, is that you generally have no privacy rights at your workplace, and that extends to your locker, your purse, your lower right desk drawer where you think nobody will look and even your car. That means a highly motivated employer may start conducting random drug searches instead of random drug screenings.

What you should also remember if you are a medical cannabis patient employee is that even though using medical cannabis does not put you in a protected class, the medical condition that qualifies you to be a medical cannabis patient probably does. That is to say, your employer cannot fire you because you are disabled or, more specifically, because you have a qualifying disability under the Americans with Disabilities Act. And if you are a medical cannabis patient in Michigan you may well be “disabled” for purposes of the ADA and its state companion.

Employers will need to be on their guard, and an astute employer will very likely give serious thought to ceasing screenings for cannabis use entirely rather than risking an employee’s disclosure of his or her ADA qualifying condition in response to an inquiry about a positive cannabis test. This practice may well lead to an uneasy workplace truce akin to the military’s “don’t ask don’t tell” policy of the ’90s.

Before you go telling off your boss and planning out how to spend your millions, that is not at all how it works, and I want to be very clear that this is a complex body of rapidly developing legal doctrines that I am summarizing very simplistically, and it would take a book to cover this topic completely. Every employee, every ADA qualifying condition and every case is different. However, this was an important decision in Michigan and employee patients have been harshly treated by employers who often do not take the time to realize that medical cannabis is creating productive employees out of former social security disability recipients. Knowledge is power, and this kind of information is powerful, and requires dissemination far and wide.

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