Michigan Medical Marihuana Act – Potential Employer Pitfalls

An employee’s urine test discloses the presence of the marihuana metabolite, THC-COOH. The employee produces a valid “Registry Identification Card” issued pursuant to the Michigan Medical Marihuana Act [MCL 333.26421, et seq. – MMMA].  He explains he last smoked medical marihuana over the weekend.

What can the employer do?  What should the employer do (or not do) under current Michigan law?

The MMMA grants “immunity” to authorized medical marihuana patients in Section 4(a) of the Act [MCL 333.26424]:

“A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act * * *.”

[Emphasis added].  Does this protect the employee from discipline or discharge?

The case of Casias v Wal-Mart Stores, Inc, 695 F3d 428 (6th Cir 2012) says “no.”  Casias ruled that the MMMA does not apply to private employers, only state actors.  This ruling offers a strained reading of the above statutory section, and ignores other pertinent sections of the MMMA.  Recent court decisions have impliedly criticized Casias and refused to follow it in related factual situations.  In Braska v Challenge Manufacturing, 307 Mich App 340 (2014), the court stated “the Casias decision is not binding precedent on this Court,” and found that persons lawfully using medical marihuana are not disqualified from receiving unemployment benefits following a positive drug test.

It is unclear what a Michigan appellate court would decide if faced with facts similar to Casias. As a result, employers are wise to think twice before firing a medical marihuana user for testing positive on a drug test.

Employers also should exercise great restraint when discovering that an employee possesses a valid Registry Identification Card.  Why?  Because any conversation or discussion about the underlying reason for the employee’s use of medical marihuana is fraught with danger.  If an employer learns its employee is using medical marihuana to control her epilepsy, and the employer did not know about the employee’s condition before, any employment action the employer thereafter considers might appear to be motivated by the employee’s disability and not her positive drug test.  In fact, a very recent decision by U.S. District Judge Steeh in Detroit involved precisely this claim.

If any employer or employee is faced with a medical marihuana issue, attorney Robert M. Sosin [248-642-3200 / robert@asnlaw.com] would be pleased to discuss the matter in more detail.

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How Long Must Employer Allow Employee to “Heal”?

An employee is injured in an accident outside of work.  She requests and is granted an unpaid leave of absence under the Family and Medical Leave Act [FMLA].  However, after her twelve (12) weeks of FMLA leave are exhausted, her doctor still has not released her to return to work.  The doctor’s note to the employer indicates the employee needs another month to heal from her injuries sufficiently to be able to perform the essential functions of her job.

What are the employer’s options?  Does the employer have to allow the employee additional time off even though she has used up her FMLA leave?  Does the Americans with Disabilities Act [ADA] afford the employee more time to “heal” from her injuries as a “reasonable accommodation” under the Act?  And, if so, is there a clearly defined limit of time under the ADA after which the employer no longer has to wait for the employee to heal?

Unfortunately for employers and employees alike, there are no bright line “healing” parameters.  However, some reasonable guidelines have emerged from the Equal Employment Opportunity Commission [EEOC] and court decisions.  For example:

  • One (1) additional week of leave after expiration of FMLA leave almost certainly is a reasonable accommodation – “unless [the employer] can show undue hardship. The employer may consider the impact on its operations caused by the initial 12-week absence, along with other undue hardship factors”

EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (2002)][1]

  • Six (6) months of additional leave is likely unreasonable and not required by the ADA.
  • Hwang v Kansas State University, 753 F3d 1159, 1161 (10th Cir 2014) – “It perhaps goes without saying that an employee who isn’t capable of working for [six months] isn’t an employee capable of performing a job’s essential functions—and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation” under the Rehabilitation Act;
  • EEOC Enforcement Guidance, supra – “An employer is seeking a reassignment for an employee with a disability. There are no vacant positions today, but the employer has just learned that an employee in an equivalent position plans to retire in six months. Although the employer knows that the employee with a disability is qualified for this position, the employer does not have to offer this position to her because six months is beyond a ‘reasonable amount of time’”.

What about time frames between these diverse periods?  And how does a well-intentioned employer  deal with an employee who presents “serial” doctor notes at the conclusion of each leave period further extending leave for an additional week or two each time?

Please contact attorney Robert M. Sosin in our office to discuss these and other employment issues you may have.  He can be reached at 248-642-3200, or at robert@asnlaw.com.

[1] The EEOC has not revisited this publication since the 2008 enactment of the ADA Amendments Act even though the EEOC indicated it “will be evaluating the impact of [the Amendments Act] on this document.”

Employer-Imposed Arbitration

            Many employers have inserted mandatory arbitration provisions into their Handbooks.  These provisions require employees to submit all employment-related claims to binding arbitration.  Typically, such provisions look to the American Arbitration Association (AAA) Employment Rules to govern the arbitration proceedings.  

            Until fairly recently, an employee filing an employment-related claim with AAA against his or her employer would have had to pay thousands of dollars in filing fees and arbitrator fees attempting to prosecute such claim.  However, a few years ago AAA amended its Employment Rules to require the employer to pay all but $175 of the arbitration fees if the claim was presented to AAA pursuant to an “Employer-Promulgated Plan” for arbitration.  

            Should employers continue to insist in their Handbooks on binding arbitration of employment-related claims with AAA when the cost to the employer of such arbitration (not including the employer’s own attorney fees) could be tens of thousands of dollars?  Is the historical benefit of arbitration (e.g., avoiding runaway jury verdicts) worth such a substantial monetary investment?  Are there ways of compelling arbitration without incurring such costs? 

            Please do not hesitate to contact Robert M. Sosin at Alspector, Sosin & Noveck, PLLC to discuss these and any other employment matters that may affect you.