August, 2021 | Fraser Blog

Michigan Attorney General Argues that Legal Marijuana Use Shouldn’t be Grounds to Deny Unemployment Benefits

In 2018, Michigan legalized the recreational use of marijuana. Marijuana use remains unlawful under federal law. Despite the legality under state law of use, some Michigan workers who have lost jobs have had state unemployment benefits denied on the basis that they failed an employer’s drug test due to marijuana use.

Michigan Attorney General Dana Nessel (the “AG”) has waded into the fray to argue that an apparent conflict in state laws related to marijuana use and unemployment benefits should be resolved in favor of terminated workers seeking benefits.

In three cases currently before the Michigan Unemployment Insurance Commission (the “Commission”), the AG filed an amicus curiae brief (a brief filed by a non-party with a strong interest in a matter) arguing that engaging in a “legal” activity (i.e., using marijuana within the permissive scope of Michigan law) that does not affect an individual’s work should not be a valid basis for denying benefits.

The AG’s Position on Conflicting Statutes

Michigan’s Employment Security Act (“MESA”) entitles workers to apply for and receive unemployment benefits. Workers can be denied benefits, however, under specific circumstances. Two of those circumstances include (1) situations where the employee tests positive for illegal drugs or (2) commits misconduct related to work. These were the statutory “disqualifications” applied to deny benefits.

AG Nessel sets forth three arguments in support of her position:

First, that an employer cannot deem off-site and off-hours private activity that does not affect job performance, to constitute “misconduct” under the MESA;
Second, § 29(1)(m) of the MESA defines a drug test as a “test designed to detect the illegal use of a controlled substance.” The AG argues that the tests administered to the claimants did not detect and could not have detected the “illegal” use of marijuana because such use is legal, subject to certain exceptions not applicable in these cases; and,
That the denial of unemployment benefits for the private legal use of marijuana conflicts with the plain language of the law making marijuana use legal. That law provides the use of marijuana cannot be “grounds to deny any . . . right or privilege,” and provides in § 4 that “[a]ll other laws inconsistent with th[e] act do not apply to conduct that is permitted by th[e] act.”

The AG’s briefing attempts to clarify that her position is not meant to question or diminish an employer’s rights to enforce a workplace drug policy. Nor, according to the briefing, does her position address other questions including possessing or using marijuana while on the employer’s property or while working, or an employee being under the influence of marijuana while at work.

What it Means for Employers

It is important to note that the outcome of these cases will not impact an employer’s right to discipline or terminate an employee based on marijuana use outside of work. Questions related to Michigan’s status as an “at-will” employment state are not before the Commission.

The outcome may, however, limit an employer’s ability to challenge the grant of unemployment benefits to a worker terminated for off-premises, off-hours marijuana use. The issues involved almost certainly will be resolved ultimately at the Michigan Court of Appeals.

We will continue to keep you apprised of any further developments in these matters. In the meantime, if you have any questions about these issues, please contact please contact Dave Houston or your Fraser Trebilcock attorney.

This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.

Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

COVID Updates – Is My Workplace a “Public Indoor Setting” According to the CDC’s New Mask Guidelines?

If there is anything we’ve learned about COVID-19’s impact on businesses over the last 18 months, it’s that change is the only constant. Changes in economic conditions, variants of the virus, and shifts in workplace guidance from government agencies have all required business leaders to study the issues and best practices, and make the best decisions for their organizations.

With COVID numbers on the rise, reportedly due to the “Delta” variant, businesses are again confronted with making decisions about mask-wearing policies in the workplace. Masking is back at the forefront of discussion following July 27, 2021, revised guidance from the Centers for Disease Control and Prevention (“CDC”) recommending that even fully vaccinated individuals should resume wearing masks in “public indoor settings” in areas of the U.S. that have “substantial” or “high” COVID-19 transmission rates.

It was only a few months ago, in May, 2021, that we reported CDC guidance that fully vaccinated individuals could stop wearing masks and discontinue physical distancing in most settings, except in hospitals, on public transit or in other specified places.

What this Means for Businesses

It is important to note that the CDC’s new recommendation regarding mask-wearing is not a mandate. However, many businesses have chosen to base their COVID-19 workplace safety policies during the pandemic on the CDC’s guidance. Accordingly, for businesses that intend to follow the revised guidance, it’s important to understand the meaning of certain terms used therein in order to implement appropriate policies.

The revised guidance does not define the meaning of “public indoor settings” where it recommends masks be worn. However, the CDC has previously distinguished public settings from private household settings. Because the CDC’s guidance is not a mandate, businesses evaluating workplace policies should consider their particular circumstances, including issues such as the size of their workforce located within an indoor setting, local rates of transmission, and the percentage of workers vaccinated, among other factors.

The revised guidance does define the term “substantial or high transmission rates.” It refers to two metrics, considered separately:

the rate of new COVID-19 cases per 100,000 people; and,
the positivity rate.

Both CDC metrics are based on measurements looking back in time over the preceding seven days.

“Substantial” transmission is defined as 10-50 cases per 100,000 residents or a positivity rate between 5-8 percent.

“High” transmission is 100 or more cases per 100,000 or a positivity rate of 10 percent or higher.

The CDC has created a COVID-tracker map that can be viewed to determine transmission rates by county. In Michigan, as of August 11, 2021, a majority of counties have substantial or high transmission rates.

We recommend that businesses continue to monitor federal, state and local guidelines and/or mandates in order to evaluate and implement appropriate workplace safety policies. If you have any questions, or require assistance, please contact please contact Dave Houston or your Fraser Trebilcock attorney.

There’s a “Growing” Debate in the Michigan Cannabis Industry Between Commercial Producers and Caregivers

Cannabis caregivers and some large commercial marijuana producers in Michigan are at odds in a debate over restricting the number of plants grown and distributed by individual caregivers. Several media reports have indicated that commercial producers are pushing state legislators to require more regulation and licensing for caregivers under the Michigan Medical Marijuana Act. (“MMMA).

Current Caregiver Guidelines

Under the MMMA, anyone can be a caregiver who is 21 or older with no drug or violent felonies of any kind, and no non-violent felonies over the last 10 years. Caregivers are allowed to supply marijuana to up to five “qualifying patients” (not including themselves, if they are also a patient). Under Section 4 of the MMMA, caregivers may possess up to 2.5 ounces of “usable marijuana” and up to “12 marijuana plants” per patient. Accordingly, the MMMA allows for 72 plants and 15 ounces of usable marijuana total, if the caregiver is also a patient.

The Debate Over Licensing and Oversight

The debate over licensing and regulation of the caregiver market involves certain large producers of marijuana and the Michigan Cannabis Manufacturers Association (“MCMA”), on the one side, who are reportedly pushing for more stringent oversight. The other includes caregivers who argue that the legislative push is meant to limit competition by driving more sales to licensed marijuana shops.

Large producers argue that caregivers should be forced to adhere to testing standards to maintain safety and create consumer confidence in product quality. Without these caregiver standards in place, they argue that caregiver sales increase public health risks and lead to more black-market sales.

The MCMA funded a study which found that approximately 70 percent of the $3.2 billion in statewide marijuana sales came from the black market.

According to MCMA Executive Director Stephen Linder, “While there have been many successes in Michigan’s regulated cannabis industry, there are major storm clouds on the horizon. The [study] shows large quantities of untested, illicit cannabis continue flooding the market. This poses a significant threat to patient and consumer safety.”

While media reports do not indicate the specific legislation changes that advocates of reform are pushing for, they are likely focused on imposing stricter caregiver grow limits and product tracking and testing.

Caregiver and patient advocates are fighting back with both grassroots and social-media campaigns to combat the perceived threats to caregiver rights.

We will continue to keep you apprised of further developments in this debate. In the meantime, if you have any questions or require assistance, please contact Paul C. Mallon, Jr., Shareholder and Chair of Fraser Trebilcock’s cannabis law practice.

Paul C. Mallon, Jr. is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043.

7th Circuit Rules in Favor of Indiana University’s COVID-19 Vaccine Requirement for Students

With the current increase of hospitalizations, the influx of the Delta variant in the United States and the low level of vaccinations in certain regions of the United States, universities and other higher education institutions are faced with a dilemma: Can these institutions make COVID-19 vaccinations mandatory for students?

It is an issue with complicated layers, and the evolving nature of COVID-19 doesn’t make it easy to arrive at a single consensus. Virginia Tech announced that it doesn’t believe it is legally authorized to require COVID-19 vaccinations for its students since the FDA has approved vaccines only for emergency use.

While Virginia Tech isn’t requiring vaccinations, according to the Chronicle of Higher Education, as of August 2021, at least 645 colleges are requiring students to receive the COVID-19 vaccination as a prerequisite to attend classes on campus. Other higher institutions have followed suit. University of Michigan, Michigan State University and Wayne State University all recently announced vaccine mandates.

Not surprisingly, vaccine mandates by universities have been challenged in the courts. And in a recent ruling, the U.S. Court of Appeals for the Seventh Circuit, in Klaassen v. Trustees of Indiana Univ., upheld Indiana University’s right to mandate vaccines for students returning to campus. The ruling denied a request for an injunction pending appeal of a federal district court’s ruling in favor of Indiana University.

The Seventh Circuit cited U.S. Supreme Court case Jacobsen v. Massachusetts as a precedent for its ruling. In Jacobsen, the Court held that a state may require all members of the public to be vaccinated for smallpox. Based on this ruling, the Seventh Circuit stated that there can’t be a constitutional issue with institutions requiring students to receive the COVID-19 vaccine.

The Jacobsen case didn’t allow for an exemption for adults, which is different from Indiana University’s policy on COVID-19 vaccines. The university allows exceptions for those students who declare vaccinations incompatible for religious beliefs and for those individuals for whom vaccines are medically contraindicated. Those exempt individuals are required to wear a mask and get tested. The Seventh Circuit did not view this as a constitutional problem.

The last distinction the Seventh Circuit made is that Indiana does not require every person in the state to be vaccinated, as was the case in Jacobsen. Those students who don’t want to comply with Indiana University’s vaccination requirement can simply attend an institution that doesn’t have this requirement. The court stated, “Each university may decide what is necessary to keep other students safe in a congregate setting. . . Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at the university close contact is inevitable.”

In addition, since universities can already require surrendering property (i.e., payment of tuition) or requiring students to read or write about certain things (i.e., assignments by a professor), it was “hard to see a greater problem with medical conditions that help all students remain safe while learning.” The Seventh Circuit explained that it would be too difficult to learn if other students felt the spread of disease was imminent.

Indiana University can’t require students, faculty or staff to provide documentation that they received the vaccine since the attorney general of Indiana stated it would violate a new state law banning immunization passports. Instead, individuals would sign an attestation statement certifying they received the vaccine. Lying about vaccine status on this form may result in a punishment.

This case isn’t the final word on the issue. Plaintiff’s lawyer has indicated he plans to appeal the ruling to the Supreme Court. The landscape and terrain on requiring vaccines at higher institutions is subject to the evolving nature of COVID-19 and the responsibility of universities to offer the best learning environment and most importantly, a safe place for students.

If you have any questions about this recent ruling, or vaccine policy issues in higher education more generally, please contact Ryan Kauffman.

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at rkauffman@fraserlawfirm.com or 517.377.0881.

COVID Updates – Long COVID May Qualify as an ADA Disability

President Biden announced on July 26 that Americans experiencing “long COVID-19” symptoms may qualify as having a disability under the Americans with Disabilities Act (“ADA”), based on guidance issued jointly by the U.S. Department of Justice (“DOJ”) and the U.S. Department of Health and Human Services (“HHS”). With COVID-19 cases rising 64 percent week-over-week as of August 4, and more attention being paid to the long-term ramifications of the disease, this is an issue that could affect many employers.

Long (or long-haul) COVID refers to a prolonged illness experienced by someone who caught the virus but continues to have symptoms weeks or months following the initial diagnosis. Scientists are still studying why some people are more vulnerable to long COVID than others. Typical symptoms include breathlessness, fatigue, memory loss and a general sense of “brain fog,” although persistent symptoms lasting for months can be vague, even for those who initially were asymptomatic.

The guidance from the DOJ and HHS explains that long COVID can be a disability under the ADA, which prohibits discrimination against, and requires reasonable accommodation for, qualified individuals with disabilities. However, the agencies emphasized that an “individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms” limits their ability to work.

It is important to note that President Biden’s statement and agencies’ guidance do not carry the weight of law. The practical implication of the guidance for employers is to raise awareness that they may have to provide paid time off, benefits and reasonable accommodations (such as the ability to work remotely or other flexible work arrangements) for employees who are suffering from long COVID symptoms. Reviewing and making adjustments to existing policies in light of this guidance may be appropriate. Please contact us for additional information and assistance.

Given the fluid nature of COVID-19’s impact, we will continue to provide employer-updates on important issues, including legislative and regulatory changes at both the federal and state levels.

If you have questions about this issue, please contact Aaron Davis or your Fraser Trebilcock attorney.

Aaron L. Davis is Shareholder and Chair of Fraser Trebilcock’s labor law practice. You can reach him at adavis@fraserlawfirm.com or (517) 377-0822.

CDC Enters a “Round 2” Modified Eviction Moratorium

Effective August 3, 2021, the Centers for Disease Control and Prevention (“CDC”) issued a second eviction moratorium that, by its terms, is effective August 3 through October 3, 2021. The text of the order can be found here.

Instead of a blanket eviction prohibition, as was in place with the CDC order that expired on August 1, this new order applies in areas with “substantial” or “high” rates of COVID-19 transmission. “Substantial” and “high” are defined within the order pursuant to a numerical formula, and the order states that it provides links to a CDC website that maintains county-by-county score cards that apply the formula. Popular media and commentators note that this qualifying rate requires 50 COVID-19 cases per 100,000 people over a seven day period. They also note that, according to the CDC, about 80 percent of US counties are currently experiencing these rates. If a county falls below the required rate for 14 days the moratorium does not apply, but if the rate goes back up to this level, it does. This would likely result in eviction proceedings starting then being stayed, depending on conditions, and may initiate some races to the courthouse, as the saying goes.

The general prohibition provides that: one “with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any county or U.S. territory while the county or territory is experiencing substantial or high levels” of COVID-19 transmission.

To be a “covered person” a tenant must: declare, under penalty of perjury, to various circumstances. Those declarations, quoted in part and paraphrased in part, are that:

The individual has used best efforts to obtain all available governmental assistance for rent or housing;
The individual income qualifies (basically, the individual received a stimulus check);
The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay off, or extraordinary out-of-pocket medical expenses;
The individual is using best efforts to make timely partial rent payments that are as close to the full rent payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses;
Eviction would likely render the individual homeless—or force the individual to move into and reside in close quarters in a new congregate or shared living setting because the individual has no other available housing options; and
The individual resides in a U.S. county experiencing substantial or high rates of transmission of COVID-19 (pursuant to the formula).

A standardized CDC form is supposed to be available through the CDC, pursuant to the new order, but at the time of publication, the link to that form was dead. It just led to a page stating that the moratorium had expired. This may change in the future, however. That link is here.

Other important aspects of the new order to consider include the fact that the new moratorium is in its infancy and there is no indication on how courts will treat various aspects of it. In particular, “[t]his Order does not preclude a landlord challenging the truthfulness of a tenant’s, lessee’s, or resident’s declaration in court, as permitted under state or local law.” However, “[a]s long as the information in a previously signed declaration submitted under a previous order remains truthful and accurate, covered persons do not need to submit a new declaration under this Order.”

Like the prior version, the new moratorium does not cancel the tenant debt. Tenants can still be evicted for other breaches of the lease and, the author would argue, when a lease expires. If a tenant has COVID they cannot be evicted, but they can be evicted if they engage in criminal activity, threaten others (but being sick with COVID-19 itself is not deemed a threat to others), damage property or pose an immediate risk of damaging property, or violate ordinances or building codes.

On June 29, 2021, in the case of Alabama Association of Realtors® v. US Department of Health and Human Services, four justices voted to hear an appeal of a stay order entered by a District Court that held that the initial moratorium exceeded the CDC’s authority. Justice Kavanaugh, who concurred with the 5-vote majority to allow the CDC moratorium to remain in place, wrote: “I agree with the District Court and the applicants [the Alabama Association Plaintiffs] that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” But, he concurred with the majority, and allowed the moratorium to stay in place because it was about to expire on July 31, and that the overall equities of the situation dictated that the moratorium should remain in place, albeit temporarily. Justice Kavanaugh further wrote that: “[i]n my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

Thus, many Supreme Court watchers and commentators believe that our Supreme Court will hold such a moratorium invalid if it ever confronts the merits of the issue. As several federal courts found the prior moratorium unlawful, but never struck it nationwide based on various principles, we may again be confronted with a situation where the moratorium will expire before courts strike it down.

If you are a Michigan landlord seeking to navigate this current climate please contact Jared Roberts at Fraser Trebilcock.

Jared Roberts is a shareholder at Fraser Trebilcock who works in real estate litigation and transactions, among other areas of the law. Jared is Chair of the firm’s Real Estate department, and also “walks the walk” as a landlord and owner of residential rental properties and apartments in Downtown Lansing. He may be reached at jroberts@fraserlawfirm.com and (517) 482-0887.

New Guidance Confirms that Title IX Protections Apply to the LGBTQ+ Community

The U.S. Department of Education’s Office of Civil Rights (“OCR”) recently issued a “Notice of Interpetation” confirming that Title IX protects students from harassment and discrimination based on their sexual orientation and/or gender identity.

This guidance is consistent with the 2020 Supreme Court decision in Bostock v. Clayton County in which the Court ruled that sex discrimination against gay and transgender employees was prohibited under Title VII of the Civil Rights Act. Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, prohibits discrimination on the basis of sex in any educational program or activity offered by a recipient of federal financial assistance.

The OCR’s interpretation may offer students another path for pursuing legal remedies under Title IX, particularly in states with fewer protections for LGBTQ+ students. It is expected that this new guidance will be used to address such issues as college sports participation and locker room and bathroom usage consistent with student identities.

In light of the guidance, colleges and universities should review their Title IX policies with legal counsel and communicate with faculty and staff about the implications of the policy. They should also consider updates to internal processes and policies to ensure compliance when claims of harassment or discrimination are brought to campus officials.

Taking proactive steps is important because the OCR warns that it will enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive federal financial assistance from the Department of Education. This includes “allegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity.”

If you have any questions, or require assistance, please contact Ryan Kauffman.

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at rkauffman@fraserlawfirm.com or 517.377.0881.