Medical marijuana UI decision in Michigan stands

The Michigan appellate court decision (previously noted here) holding that the use of medical marijuana does not qualify as misconduct in Michigan will not be reviewed by the Michigan Supreme Court. Rick McHugh of NELP has the details:

In October 2014, the Michigan Court of Appeals held that denying UI benefits to claimants who were registered medical marijuana users and who were fired when they tested positive for marijuana was a prohibited penalty under Michigan’s Medical Marijuana Act. Under the facts of this case, there was no allegation that any of the claimants were in possession of, intoxicated, or under the influence of marijuana while at work. All testified that they had used marijuana away from work pursuant to their medical marijuana cards. Despite this, the administrative appellate body, the Michigan Appellate Commission, had imposed misconduct disqualifications upon the claimants. Three separate trial courts then reversed and the cases were consolidated in the state court of appeals.

The favorable reported ruling is found in Braska v. Challenge Manufacturing, 861 N.W.2d 289 (2014). While the agency’s petition for appeal was pending, Mr. Braska passed away, so the Supreme Court order denying review last week was issued under the caption Janine Kemp v. Hayes Green Beach Memorial Hospital, one of the two remaining cases.

Here is a news article that gives further background about the case.

NELP had filed an amicus brief with the Michigan ACLU and Michigan UI Program in the Court of Appeals. The favorable holding is based upon explicit language contained in the Michigan Medical Marijuana Act — which was passed as a result of a voter referendum. And the act was very skillfully drafted.

legalized marijuana and unemployment drug testing

Rick McHugh of the National Employment Law Project reports the Michigan Court of Appeals held in a unanimous decision last week that claimants holding registration cards under the Michigan Medical Marijuana Act were not subject to disqualification under Michigan’s unemployment law where there was no use of marijuana at work and no showing of impairment at work. All three claimants in this consolidated appeal tested positive for marijuana on a drug test, but the court held that a disqualification from unemployment benefits was preempted because the marijuana act bars Michigan from imposing any “penalty” upon registered medical marijuana users for their use of medical marijuana as authorized by their physicians.

Although based upon the specific language of the Michigan medical marijuana statute, which passed as a ballot initiative, the decision contains a useful analysis of Michigan’s unemployment drug testing disqualification provision as well as the state’s more traditional misconduct disqualification. The court found that a disqualification for unemployment benefits on either ground where claimants held medical marijuana cards and were using marijuana consistently with their cards would be a penalty prohibited by the state’s medical marijuana law. The court rejected a different result reached by a Colorado court at a time that the state’s medical marijuana law only prohibited Colorado from criminally prosecuting medical marijuana users.

A still relevant history of unemployment drug testing is available from the “Unemployment Insurance and Drug Testing,” Clearinghouse Review vol. 24, p. 811 (December 1990).