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 firstname.lastname@example.org.