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Michigan Medical Marijuana Users Not a Protected Class

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Recently, a Michigan appellate court issued an unpublished opinion in a case[1] involving the Michigan Medical Marijuana Act (MMMA). The issue before the court was whether the defendants, a municipality and a municipally-owned utility company, violated the MMMA when plaintiff’s conditional employment offer was rescinded after plaintiff tested positive for tetrahydrocannabinol (THC) during a standard pre-hire drug screen.
The plaintiff claimed that, as a “qualifying patient” under the MMMA, she could not be penalized for her compliant use of medical marijuana. Under the MMMA, a qualifying patient cannot be denied any right or privilege including disciplinary action by a business for using medical marijuana in compliance with the law.  
The trial court granted summary judgment in favor of the defendants. On appeal, the Ingham Circuit Court affirmed the ruling, holding that no contract existed between the parties and that Section 4 of the MMMA “does not provide an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class for users of medical marijuana.” That is, the MMMA can operate as a shield, but not as a sword.
To illustrate this point, the court reviewed an earlier set of cases involving the denial of unemployment benefits. In those cases, the plaintiffs met all other requirements for unemployment benefits under applicable law except for their medical marijuana use. As a result, disqualifying those individuals from receiving unemployment benefits “amounted to a penalty imposed on claimants for their medical use of marijuana”[2] in violation of the MMMA. Thus, the MMMA protects against the denial of other rights based on medical marijuana use, such as the right to unemployment benefits, but does not create an affirmative right to use medical marijuana.
This Michigan case contrasts with several other recent rulings that granted additional protections to medical marijuana users. For example, the Superior Court of Delaware determined an employer could comply with the anti-discrimination requirements of the Delaware Medical Marijuana Act.
Situations involving candidate and employee marijuana use, both medical and recreational, are becoming more frequent. Employers should consult qualified legal counsel to develop appropriate drug testing policies and procedures.
[1] Eplee v. City of Lansing, 2019 Mich. App. LEXIS 277 (Feb. 19, 2019). Note: Michigan spells “marijuana” as “marihuana” in the state law.
[2] Eplee v. City of Lansing, quoting Braska v. Challenge Mfg. Co., 307 Mich. App. 340, 861 N.W.2d 289 (2014).

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