How does the Michigan medical marijuana statute impact an employer’s right to enforce its substance abuse policy, including drug testing requirements, and an employee’s right to reasonable accommodations under the ADA?

The Michigan Medical Marihuana Act (MMMA) became effective January 1, 2009. It allows a “qualifying patient” with a registry identification card to possess up to 2.5 ounces of usable marijuana.

The MMMA does address certain issues relative to employment and medical marijuana use. First and foremost, the MMMA does not require an employer to allow medical marijuana use in the workplace and does not allow employees to work under the influence of marijuana. The statute does not clarify, however, what “under the influence” actually means, i.e., what amount of marijuana might remain in an employee’s system. The MMMA expressly prohibits any person to (1) “undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice;” (2) possess or engage in the medical use of marijuana on any school bus, school grounds, or correctional facility; (3) smoke marijuana in any public place or on any form of public transportation; (4) “operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marijuana;” or (5) “use marijuana if that person does not have a serious or debilitating medical condition.”

An area of concern for many employers is drug testing. An employee that is under the influence of marijuana while working or found smoking marijuana in the workplace may be subject to discipline, including termination, regardless of whether the employee is a qualifying patient under the statute. Furthermore, federal case law has supported an employer’s right to terminate an employee for marijuana use, even if that employee is disabled according to the ADA. However, employers must be mindful that employees who use medical marijuana may have a condition that is protected under the ADA, even though their actual marijuana use to treat the underlying condition is not protected. In other words, the employee’s use of the drug may not be protected, but the medical condition itself may pose roadblocks to disciplinary or other action against the employee.

Open questions remain: (1) whether a Michigan employer may enforce its drug policies if an employee or applicant voluntarily discloses that he or she is a qualifying patient; (2) whether a positive drug test at a certain cutoff point is not considered “under the influence;” and (3) whether an employee’s medical marijuana use makes the employee eligible for FMLA leave. Depending on how courts construe the relationship between medical marijuana use and the FMLA, employers may eventually face more extensive obligations to accommodate employee leaves of absence.

Employers must be familiar with the medical marijuana laws in every state in which they operate to ensure compliance with the relevant laws. When faced with questions arising from employee marijuana use, employers should proceed with caution and seek outside guidance.