Smoking Joints For Aching Joints: What’s An Employer To Do?

Smoking Joints For Aching…

Under Michigan’s Medical Marijuana Act, patients who have been prescribed the use of marijuana to treat medical conditions and who hold a registry identification card, shall not be subject to “disciplinary action by a business or occupational or professional licensing board or bureau” for the medical use of marijuana. Does this mean Michigan employers must modify workplace rules that prevent the use of a controlled substance or reporting to work while under the influence of a controlled substance?

No. Under current case law, Michigan’s Medical Marijuana Act is intended to protect individuals from government prosecution but does not regulate private employment practices. Accordingly, employers may still discipline or terminate employees who use marijuana in the workplace or who report to work under the influence of marijuana, even if the employee was using marijuana for medical treatment.

A word of warning, however. While employers may continue to enforce workplace restrictions on the use of marijuana, they should keep several points in mind. First, be aware that the Michigan Court of Appeals has held that employees who were terminated for violating a company drug policy may be eligible for unemployment benefits if the violations stem from the use of medically prescribed marijuana. Second, be careful that a drug policy violation (e.g., terminating someone for failing a drug test) is not perceived as a pretextual cover for some other form of unlawful discrimination. If a judge or jury concludes that the real reason for the adverse employment action was unlawful discrimination and not failing the drug test, the employer may still face liability.

As public attitudes toward marijuana use shift, employers might expect evolving judicial opinions with increased sympathy toward the marijuana user. But at least for now, the basic rule is the same: an employer has the right to establish and maintain workplace safety rules, including rules against reporting to work under the influence of marijuana.

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