Business Owners and HR Professionals understand the importance of having an Employee Handbook in place.
An Employee handbook or manual is a useful tool for an employer to engage its employees at the onset of the employment relationship with its mission statement and clarify its policies, including discipline and termination.

However, the primary purpose of every good handbook should be to protect the employer from claims of any discrimination or wrongful termination.

Issues have arisen as of late regarding marijuana usage of employees and the Michigan Medical Marijuana Act (“MMMA”). Should an employer fear liability for terminating an employee who has failed a drug test?

I.              Background of the MMMA

The MMMA was enacted in 2008 to provide protections for the medical use of marijuana.  Consequently, it has raised new questions about the scope of protections the MMMA provides for a covered individual.

Does the MMMA create a potential “wrongful discharge” action against a business if the business engages in disciplinary action against a card holder who is a qualifying patient?

In a case decided September 19, 2012, the U.S. Court of Appeals for the Sixth Circuit answered this question with a resounding “no” to uphold the rights of businesses in making these private employment decisions. The case is Casias v Wal-Mart Stores, Inc, 695 F3d 428 (CA 6 2012).

II.             The Facts of Casias:

In Casias, Plaintiff was an employee of Wal–Mart’s Battle Creek, store from November 1, 2004 until November 24, 2009, when Plaintiff was terminated from Wal–Mart after he tested positive for marijuana, in violation of the company’s drug use policy. Id. at 431.

Prior to his termination, on June 15, 2009, Plaintiff was issued a registry card through the Department of Community Health, and began using marijuana for pain medication. After being terminated, Plaintiff sued his employer for wrongful discharge arguing that “the MMMA prevents a business from engaging in disciplinary action against a card holder who is a qualifying patient.” Id.

III.           Looking at the Language of the MMMA:

In deciding this issue, the 6th Circuit looked at the language of the MMMA:

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act….

Mich. Comp. Laws § 333.26424(a).

The parties’ dispute focused on the use of the word “business” and whether the word simply modifies the words “licensing board or bureau,” or in the alternative, whether “business” should be read independently from “licensing board or bureau.” (Emphasis added.) Id. at 435.

The 6th Circuit agreed with the District Court – the MMMA does not regulate private employment.  The “MMMA contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses.” Id.

IV.          Take Away For Business Owners and HR Professionals:

This case should reassure businesses that the MMMA poses no potential liability against them for making hiring and firing decisions based upon an employee’s use of marijuana.

Jeshua T. Lauka

Attorneys at Law
99 Monroe Ave. NW  Ste. 1210
Grand Rapids, MI  49503

Tel: (616) 454-3883
Fax: (616) 454-3988