Currently, 23 states and the District of Columbia have medical marijuana laws which allow a lawful level of marijuana use. One question which comes up often in such states is whether an employer can lawfully terminate an employee who fails a drug test. Until now, the answer appeared to be “yes” since an employer has a right to establish its own work rules, and can generally fire an employee for any reason absent a statutory restriction. Even if the employees had a right to use marijuana, they would not have a right to be under the influence at work, which could pose a safety risk or detract from performance.

A recent case out of Michigan, however, has upset this convention wisdom. A Michigan appeals court ruled last week that  workers fired for failing a drug test were qualified for unemployment benefits because the medical marijuana law preempted the unemployment law. The appeals court reversed the Michigan Compensation Appellate Commission’s denial of unemployment benefits for three workers, holding that a provision in the state’s medical marijuana law prohibits penalties “in any manner” for those who are legally allowed to use marijuana. In this case, the employees were fired only for failure of a drug test and not for performance reasons or because they were acting intoxicated while on the job.

This decision is expected to be appealed to the Michigan Supreme Court and could very well be reversed. That said, the takeaway from this decision is that these state medical marijuana laws are relatively new and the law in this area is evolving. In some of the more liberal states, there is an increasing tendency for the courts to interpret the laws broadly to protect employees who lawfully use marijuana. Some states have already interpreted their state marijuana laws to not protect employees from termination (e.g., Washington State), while the question is still open in other states. Employers should also be aware of employees using other state laws to bootstrap protections for marijuana users.  For example, some states have laws which make it unlawful to terminate an employee who engages in lawful conduct outside the workplace. These laws were originally intended to protect smokers from discrimination, but could easily be construed as providing similar protections to those who engage in lawful marijuana use. The next time you face a termination decision involving a medical marijuana user, it might make sense to consult with legal counsel and double-check the state law. The answer to this question might not be as easy as it looks.