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).
Wisconsin Unemployment 