On February 19, 2019, the Michigan Court of Appeals held that an employer does not violate Section 4 of the Michigan Medical Marihuana Act (“MMMA”) when it rescinds a conditional offer of employment based upon a positive drug test.
In Eplee v City of Lansing, unpublished opinion per curiam of the Court of Appeals, issued Feb. 19, 2019; 2019 WL 691699 (Docket No. 342404), the plaintiff, Angela Eplee, applied for a position with the Lansing Board of Water and Light (“BWL”). Eplee was a qualifying patient under the MMMA with a valid registry card. On May 1, 2017, BWL made Eplee a conditional offer of employment, which included as a condition that Eplee submit to a drug screening. Eplee informed a BWL supervisor that she was a registered, qualifying patient under the MMMA. On May 7, 2017, BWL notified Eplee that she tested positive for tetrahydrocannabinol (“THC”). Although BWL “began discussion[s]” regarding potentially adjusting its drug testing policy, two days later, BWL notified Eplee that it would not hire her. Id. at *1.
On November 13, 2017, Eplee filed a two-count complaint against BWL for violation of the MMMA and breach of contract. Specifically, Eplee alleged that BWL violated Section 4 of the MMMA, which prohibits “arrest, prosecution or penalty in any manner or [denial of] any right or privilege” because of qualifying-patient status:
A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act.
Eplee alleged that she was a registered, qualifying patient in compliance with the MMMA, and that BWL constituted a “business or occupational or professional licensing board or bureau” that was prohibited from denying her any right or privilege based on her medical use of marihuana. She alleged that BWL had no “legitimate business reason” to rescind her conditional offer of employment, and that it made the decision “solely because of her status as a registered qualifying patient.” Id. at *2.
In lieu of an answer, BWL moved to dismiss Eplee’s complaint, arguing, among other things, that the “MMMA does not create a private cause of action authorizing suit for alleged violations of the act.” Id. BWL also argued that the MMMA does “not prohibit employers from maintaining zero-tolerance drug policies for their applicants and employees.” Id.
In finding in favor of BWL and against Eplee, the Michigan Court of Appeals first observed that Section 4 of the MMMA “is an immunity provision, it does not create affirmative rights.” Id. at *6. (emphasis in original). The court observed that the “MMMA does not provide carte blanche to registered patients in their use of marijuana.” Id. (citing People v Koon, 494 MIch 1, 6; 832 NW2d 724 (2013)).
The court next considered its prior decision in Braska v Challenge Mfg Co, 307 Mich App 340, 352; 861 NW2d 289 (2014), which held that an employee who was a qualifying patient under the MMMA is not disqualified from receiving unemployment benefits after the employee has been fired for failing to pass a drug test for marijuana use. From that holding, the court found it “evident that an individual must show some pre-existing entitlement or right or benefit that has been lost or denied . . . before it can be said that the loss or denial of that benefit constitutes a penalty or the denial of a right or privilege under the MMMA.” Id. at *8 (emphasis added).
Applying that principle here, the court found that Eplee could not “point to any legal right that she had to be employed by BWL.” Id. The court noted that “under Michigan law by presumption, employment relationships are terminable at the will of either party,” and “such at-will employment relationships may be terminated ‘for any reason or no reason at all.’” Id. (citations omitted)).
Here, the court found that although BWL gave Eplee a “conditional offer of employment,” Eplee “never alleged that the offered employment was not at-will, and she did not allege any facts even suggesting that the employment was not at-will.” Id. at *9. The court noted that Eplee had not “alleged that she had a contract with BWL providing for a definite term of employment or prohibiting discharge without cause.” Id. Accordingly, Eplee “failed to demonstrate that she had any right or property interest of any manner in employment with BWL,” or that there was “any prohibition—statutory or otherwise—on BWL’s ability to withdraw—for any or no reason at all—its conditional offer of employment.” Id.
In closing, the court found that Eplee was attempting to use the MMMA as a “sword to obtain a protected right to employment rather than as a shield of protection that is the true function” of the MMMA. Id. The court cautioned that the “MMMA does not provide such a right,” and, importantly, there is “no language in this statute related to ‘employment.’” Id. Thus, the MMMA did not provide Eplee “a cause of action under these circumstances, and [she] . . . failed to state a claim upon which relief could be granted.” Id. at *10.
Employers may continue to enforce drug-testing policies—and rescind conditional offers of at-will employment—even if the candidate is a qualifying patient under the MMMA. Although this case does not consider the Michigan Regulation and Taxation of Marihuana Act, MCL 333.27951 et al., which legalized marijuana for recreational use in Michigan, it does provide employers guidance when potential employees raise their qualifying-patient status under the MMMA to object to drug testing policies and procedures. Because this area of law is changing rapidly, we encourage employers to remain abreast of developments and contact us with any questions or concerns.