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The Legalization of Marijuana Raises the Question, “Who’s on First?”

Mon, 11/17/2014

Toni Zeller Kohlbeck, student intern Jacoby & Meyers, LLC

State Law Conflict
The recent changes in the legalization of marijuana in some states have caused controversy nationwide.  At present, 21 states have laws regarding the possession and use of marijuana for medical purposes.  Four states and Washington, D.C. have enacted laws legitimizing recreational use of marijuana. These laws have opened a door to conflict between some of the state’s own laws and the rights of employers to terminate employees who have failed drug tests while holding a state valid medical marijuana card. 
The Michigan Medical Marijuana Act (MMMA) was enacted in 2008.  This statute does not legalize the use of marijuana, but provides protection from prosecution or state action for individuals who legally obtain a medical marijuana card when the substance is prescribed by a physician.  Michigan courts have had to interpret the law when walking the fine line between employer rights and the application of the MMMA.  
In a recent case,  Braska v. Challenge Manufacturing Co., the Michigan Court of Appeals ruled that an employee whose employment is terminated due to a positive drug test cannot be denied unemployment benefits because that involves state action. The employers in this case claimed that because they would be required to pay higher unemployment taxes, the state would be regulating their business policies.  The court concluded that because unemployment benefits are administrated by the state and the MMMA provides protection for medical marijuana card holders against state action, the terminated employees could not be denied unemployment benefits. 
At this time, Michigan law does not grant or deny private employers the right to conduct drug tests unless the testing policy violates discrimination laws.  The Michigan Employment Security Act (MESA) allows disqualification of unemployment benefits when an employee has been discharged for a positive drug test. The Court in Braska ruled that the MMMA  overrules the MESA.  
State and Federal Conflict
In Casias v. Wal-Mart, the Sixth Circuit Court of Appeals dismissed the action on its interpretation of the MMMA.  Casias filed a wrongful termination complaint against Wal-mart after he was terminated based on a positive drug test. The Court ruled that the MMMA cannot regulate private employer’s rights to dismiss employees based on positive drug tests.  Based on a careful interpretation of the wording in the MMMA, the Court ruled that the MMMA only controls state action. An employer may terminate an employee holding a valid medical marijuana card even when there is no evidence that the employee was under the influence while working. 
The court in Casias was a federal court charged with interpreting a state law.  At this time, marijuana is still illegal under the Federal Controlled Substances Act, 21 U.S.C. § 801.  Attorney General Holder has taken a hands off approach regarding involvement with the states’ marijuana laws.  As more state marijuana cases reach the federal courts, it will be interesting to see how the federal courts will lean in their decisions when they are bound to decide state cases strictly on the laws of that state.  In Braskas, the employers argued that the federal judge in Casias had ruled that employers were not bound by the MMMA.  The Michigan Supreme Court in Braskas responded to that argument by stating that the Casias decision is not binding precedent because Michigan law provides that Michigan courts are not bound by “foreign courts.”  
With the inception of new state laws regarding the possession and use of marijuana, the Nation’s state courts will begin the journey of deciding, case by case, which state laws preempt other state laws.  They will have to decide, also on a case by case basis, whose rights supersede others, such as employers vs. employees. Finally, we must sit back and watch how the federal courts and legislators respond to the new state laws as the state and federal courts argue over, “who’s on first.”