Legally High, with Benefits

This past Thursday, a Michigan court of appeals found that employees with medical marijuana cards under the Michigan Medical Marihuana Act (MMMA), terminated for failing a drug test, are still eligible for unemployment benefits.  The decision came about after three different employees were fired by their respective employer after failing a drug test.  The three different appeals were consolidated into one case.

The first concerned Rick Braska, who worked for Challenge Manufacturing Company (“Challenge”) as a material handler/hi-lo operator since 2009. In May 2010, Braska obtained a medical marijuana card to treat his chronic back pain.  Challenge was unaware of Braska’s status as a medical marijuana cardholder.  When he became injured in June 2010, he was sent to a medical center where he failed a mandatory drug test and first identified himself as a medical marijuana cardholder.  Braska’s failed drug test was a violation of Challenge’s drug-free workplace policy and he was subsequently terminated.

The second appeal concerned Jenine Kemp, who worked for Hayes Green Memorial Hospital as a CT technician.  Kemp became a medical marijuana cardholder because she suffered from Lupus, neuropathy, and chronic pain in her hand.  After receiving a patient complaint, the hospital informed Kemp that she needed to take a drug test.  Although she showed no objective signs of intoxication and claimed that she was never under the influence at work, she tested positive for marijuana.   Despite her cardholder status, Kemp was terminated because of her failed drug test.

The third appeal concerned Stephen Kudzia who worked for Avasi Services (an “in-store union” for Art Van employees) as an in-home furniture repairman.  Kudzia also became a medical marijuana cardholder, after undergoing two knee surgeries.  Kudzia used a marijuana cream on his knees.  Kudzia failed a random drug test administered by his employer when he tested positive for “metabolized marijuana.”  Even after informing his manager of his cardholder status, Kudzia was fired because of his failed drug test.

Braska, Kemp, and Kudzia all subsequently filed for unemployment benefits after their termination.  In all three cases, the Michigan Compensation Appellate Commission (MCAC) found that the employees were ineligible for unemployment benefits under the Michigan Employment Security Act.  The court of appeals rejected the MCAC’s findings, holding that the failure of a drug test, by cardholder employees acting in accordance with the MMMA, is not misconduct and is not a justification for denying unemployment benefits.

Therefore, although employers with strong drug-free workplace policies are most likely justified for terminating cardholder employees after a failed drug test, it might not be sufficient justification for denying these cardholders unemployment benefits.  Since marijuana stays in a person’s system even after the drug’s effects have worn off, a drug test might not be the most efficient way to maintain a drug-free workplace.  Employers can still maintain a strong anti-drug policy and avoid paying unemployment benefits by relying less on drug tests and relying more on objective signs of intoxication. This holding, regardless of an employee’s status, does not permit employees to use marijuana at the workplace or be under the influence of the drug while working.

Braska v. Challenge Mfg. Co., No. 313932, 2014 WL 5393501 (Mich. Ct. App. Oct. 23, 2014)