• Smoke ‘Em If You Got ‘Em!
  • November 14, 2014 | Author: Melissa J. Jackson
  • Law Firm: Foster, Swift, Collins & Smith, P.C. - Lansing Office
  • The Court of Appeals in the case of Braska v Challenge Manufacturing Company and Department of Licensing & Regulatory Affairs, Unemployment Insurance Agency just ruled that employees who are terminated for failing a drug test should not be denied unemployment compensation benefits. Judges Borrello, Servitto and Shapiro reversed the ruling of the Michigan Compensation Appellate Commission (MCAC), affirmed the circuit court’s ruling, and held that denying unemployment compensation benefits was a penalty, which is prohibited by the Michigan Medical Marihuana Act (MMMA).1

    The Judges took note that there is a Michigan statute, MCLA 421.29(1)(m), which states that an individual is disqualified for benefits if that individual: “was discharged for illegally ingesting, injecting, inhaling, or possessing a controlled substance on the premises of the employer; refusing to submit to a drug test that was required to be administered in a nondiscriminatory manner; or testing positive on a drug test, if the test was administered in a nondiscriminatory manner....” However, the court stated that there was "no evidence in the record that any of the three claimants ingested, injected, inhaled or possessed marijuana on the premises of their respective employers." There also was no evidence that the claimants were under the influence of marijuana at any time during work hours, nor did they refuse to submit to a drug test. So, the first two disqualifiers under § 29(1)(m) did not apply. As to the third disqualifier, "testing positive on a drug test," the court stated that it was not asserted that the claimants "used medical marijuana in a manner that did not comply with the terms of the MMMA."

    The Judges reasoned that the only reason the claimants "were disqualified by the MCAC from receiving benefits was because they tested positive for marijuana." Absent their medical use of marijuana, they "would not have been disqualified under § 29(1)(m)." It was solely because they used medical marijuana that "they were required to forfeit their unemployment benefits. For this reason, the decision by the MCAC to deny claimants unemployment benefits amounted to a penalty imposed for the medical use of marijuana contrary to MCL 333.26424(1)." The Judges went on to state that the MMMA preempts the Michigan Employment Security Act.

    It should be noted that the employers involved in this appeal are private employers. The federal Sixth Circuit Court’s ruling in the Casias v Wal-Mart case was that that the MMMA does not regulate private employment but was instead intended to provide “a potential defense to criminal prosecution or other adverse action by the state.” In response to this argument, however, this Braska court stated that when "an individual is denied unemployment benefits, the employer's conduct is not at issue, but rather, the denial involves state action."

    So, the lesson from the Braska court is the following: employees who have medical marijuana cards, who test positive for having marijuana in their systems, and who are terminated solely for that reason, will be able to collect unemployment compensation benefits. That is unless and until this decision is appealed to the Michigan Supreme Court and reversed.

    1The MMMA uses the spelling “marihuana.”