The prevalence of medical marijuana cards in the worker population in the auto industry has increased significantly since Michigan first passed the Michigan Medical Marihuana Act (MMMA) in 2008. While a medical marijuana card is not a "get-out-of-jail-free-card" when it comes to keeping your job with a private employer in Michigan after a positive drug test, it will save your unemployment benefits.
The Michigan Court of Appeals in Braska v. Challenge Manufacturing Co. ruled recently that employees that are discharged after testing positive for marijuana based on their use pursuant to the MMMA can still receive unemployment benefits. In Braska, the court reviewed three cases in which the former employees sought unemployment benefits after being fired for a positive drug test. All three former employees were using medical marijuana pursuant to the MMMA and there was no evidence that any of them possessed, used or were under the influence at work.
In concluding that the former employees were entitled to unemployment benefits, the court emphasized that the MMMA contains broad immunity and provides that an individual using pursuant to the MMMA shall not be subject to "penalty in any manner." As the loss of unemployment benefits constitutes a penalty issued by the state, a positive drug test based on use pursuant to the MMMA does not disqualify the former employees from unemployment benefits. Unlike the issue in Casias involving the action of a private employer, the action at issue in Braska was by the state. The court in Braska also concluded that the MMMA preempts the Michigan Employment Security Act (MESA) which provides for unemployment benefits.
Thus, while automotive suppliers and other manufacturers in Michigan can still discharge employees who test positive for marijuana, even if they are using pursuant to the MMMA, the employees are still entitled to receive unemployment benefits. The costs of unemployment benefits will now need to be weighed in any discharge decisions related to a positive test for medical marijuana.
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