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Employer Policies Trump Medical Marijuana Law - Round One

February 11, 2011
Labor and Employment Advisory

On February 11, 2011, Judge Robert Jonker issued his opinion in Casias v. Walmart, (U.S.D.C.-W.D. MI). Casias was fired by Walmart for testing positive for marijuana, despite having a valid Michigan medical marihuana card. Judge Jonker found that the MMMA does not regulate private employment actions, and therefore dismissed Mr. Casias' claims.

CAVEAT: This opinion is subject to appeal and Michigan courts are not necessarily bound by federal court decisions interpreting Michigan law. Therefore caution is still advised when dealing these types of situations. Also, the decision addresses private employment specifically, although the analysis should equally apply to public employment actions. The opinion is well reasoned and well written. There is a very good chance that Judge Jonker's opinion will become the definitive interpretation of the MMMA as it applies to employment decisions.

Judge Jonker found that the clear purpose of the MMMA was to define and restrict state action against valid medical marijuana users. Citing to both the ballot initiative language and the preamble to the legislation, he concluded that the statute was not targeted at proscribing the rights of private employers. Noting that marijuana remains an illegal substance under both state and federal law, he pointed out the anomaly that medical marijuana users using an illegal substance would be protected, while employees using legal substances would not. He found nothing in the statute evidencing a legislative intent to impose such a restriction on private employers.

Addressing the use of the undefined term "business" in the statute, Judge Jonker found that it had to be read in context with the other terms surrounding it. Hence, "business" must be read as a modifier of "licensing board or bureau" which appears after it every time the term is used in the statute. Nothing in the use of the term "business" evidenced intent to elevate medical marijuana users to protected status accorded under Michigan statutes for religion, race, color, national origin, sex, height, weight, marital status, disability and whistleblower status. Further, the statutory provision that employers need not tolerate marijuana use or being under the influence in the workplace did not equate to a positive right to be protected for use of marijuana outside of work.

As the decision found the MMMA did not prohibit private employment action, the issue of federal supremacy was not decided. Whether state law can restrict an employer from prohibiting activity which is illegal under federal law remains an open issue. Should the Michigan Supreme Court find the MMMA applies to private employment decisions, the supremacy issue may need to be decided. Given the current make up of the Michigan Supreme Court, this would seem unlikely.

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