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Michigan Court of Appeals rules medical marijuana users are still entitled to unemployment benefits

November 3, 2014

The Michigan Court of Appeals has now affirmed that an employee possessing a valid medical marijuana card under the Michigan Medical Marihuana Act (MMMA) who is fired for failing a drug test is not disqualified from receiving unemployment benefits, unless the employer can prove the employee was working while under the influence of marijuana. The court of appeals held that denying jobless benefits to such employees constituted a penalty in violation of the MMMA’s immunity clause. The immunity clause protects holders of a valid Michigan medical marijuana card from being “denied any right or privilege, including . . . civil penalty” for lawful, medicinal use of marijuana.

The appeals court’s opinion affirmed three lower court decisions in favor of card-carrying marijuana users. Each of the three employees had applied for unemployment benefits after being terminated for testing positive for marijuana. There was, however, no evidence that the employees were actually working under the influence of marijuana. One of the cases was Kemp v. Hayes Green Beach Memorial Hospital, which you can read about, along with additional background, here.

In a footnote, the court noted that the United States Court of Appeals for the Sixth Circuit (governing Michigan) has held that a private employer may discharge an employee possessing a valid medical marijuana card without violating the MMMA. But the Michigan court explained that it was not tasked with deciding the same issue. Based on this footnote, and the Michigan court’s decision itself, we expect to see a new round of lawsuits challenging the right of a private employer to discharge an employee based on a failed drug test if the employee holds a valid medical marijuana card.

Honigman will continue to monitor developments in this area. If you have any questions about this development or the MMMA as it relates to employment law, please contact one of Honigman’s Labor and Employment attorneys.