MEDICAL MARIJUANA LAW IN MICHIGAN RUNS INTO WORKPLACE RULE

Employers Not Required to Allow Marijuana Use

If a recently filed medical marijuana lawsuit reaches the Michigan
Court of Appeals or state Supreme Court, it could produce a
precedent-setting decision that impacts employers and patients, whose
jobs may be at risk even when legally using the drug.

Joseph Casias -- a 30-year-old Battle Creek resident who legally uses
marijuana -- filed a lawsuit last week against Wal-Mart in Calhoun
County Circuit Court after being fired for testing positive for pot
during a drug test.

A Wal-Mart spokesman last week said that the corporation has a
zero-tolerance policy when it comes to drug use and follows federal
law, under which marijuana is illegal.

"We've been waiting for this," Kurt McCammon, a lawyer with Miller
Canfield who specialize in employment law, said of the lawsuit.

The case, he said, may help determine whether "an employer in the
state of Michigan is required to permit an employee to use medical
marijuana outside the workplace and then come into the workplace with
some levels of marijuana in their system."

The lawsuit is the only known of its kind in Michigan, according to
several lawyers and a state official, but Casias isn't the only
person to complain.

The Michigan Department of Civil Rights has two active investigations
involving people claiming they were not hired for jobs after
disclosing they are medical marijuana users, said Harold Core, a
spokesman for the department.

The state's disabilities act says employers can establish policies
regarding the use of illegal drugs, which Core said may not apply to
the legal use of marijuana.

Core said a court opinion could help clarify the state medical marijuana law.

"It's new legislation," he said. "It's still kind of murky."

Sections of Law Hazy

Michigan voters approved the medical marijuana law in 2008, but some
parts of the act may be open to interpretation, some say.

The act says a person shall not be subject to "disciplinary action by
a business or occupational or professional licensing board of bureau"
for using marijuana in accordance with the act. But it also says the
law doesn't require an employer to accommodate the ingestion of the
drug in the workplace or an employee working while under the influence.

Add to that the fact that marijuana is illegal federally -- though
President Barack Obama directed the U.S. Justice Department to stop
using federal resources to prosecute medical marijuana cases -- and
that there is no legal standard for measuring marijuana impairment
and the issue can become murky, said Melanie Brim, director of the
Bureau of Health Professions within the Michigan Department of
Community Health.

"At this point it's wide open for interpretation," she said. "And
when you get wide open for interpretation, somebody at some point ...
is going to feel like they need a legal opinion."

And that's just what could happen.

Before filing his lawsuit, Casias contacted the Michigan Department
of Civil Rights and a file on his complaint was opened March 4, said
Harold Core, a spokesman for the department. But Casias never
returned a signed, notarized copy of his complaint, Core said.

Core said the department has been contacted by about 13 people on
medical marijuana-related complaints ranging from issues with public
accommodation or employers to law enforcement. Only two
investigations are currently active, he said.

"Our job, basically, is to look into allegations and determine what
the law says," Core said.

Richard Hurford, a Bloomfield Hills-based lawyer with Ogletree
Deakins who specializes in labor and employment law, said until the
state law says employers must accommodate the use of medical
marijuana, many will continue strict drug-use policies because
marijuana is illegal under federal law.

He said about a dozen employers he represents had to fire employees
because of medical marijuana use, but no lawsuits have been filed
against his clients.

"All employers have an obligation under federal and state law to
provide a safe workplace," Hurford said.

And some say Michigan's law can be interpreted to allow employers to
have zero-tolerance drug use policies.

Greg Rossiter, a spokesman for Wal-Mart, said the corporation has
such a policy and also requires drug screens when an employee is
injured in the workplace.

"To make sure they weren't impaired," he said.

Casias injured himself at work, was taken for treatment and given a
drug test. Dan Korobkin, a staff attorney with the ACLU of Michigan
- -- which is representing Casias, along with the national ACLU and
another law firm -- said Casias never used marijuana at work and
never showed up for work impaired.

He said the lawsuit will send a message.

Even though Wal-Mart is "a very large corporation," he said, "they
don't write the laws."

But even if Casias' case makes it to the state Supreme Court, there's
no guarantee of an opinion that's favorable to patients.

In April, the Oregon Supreme Court ruled that workers who use medical
marijuana can still be fired for drug use because the state law had
to yield to federal laws controlling illegal drugs, according to a
news report. And in 2008, it was reported that the California Supreme
Court also ruled in favor of employers, saying workers can be fired,
even if they are using medical marijuana legally.

But Korobkin said he believes Michigan's law "clearly protects
patients from being disciplined by their employers."

But some disagree.

Kurt Sherwood, a lawyer with Miller Canfield who specializes in labor
and employment law, said he believes the act was designed primarily
to protect people from criminal prosecution -- not to prohibit
employers from enforcing drug policies.

But the law, he said, can be interpreted in different ways.

"It raises an awful lot of questions," Sherwood said, "and it's
placing employers in a very untenable position."

Casias said he wants to see his case help protect some of the
20,000-plus other medical marijuana patients across Michigan.

"I'm hoping," he said, "that other people don't get fired for the same thing."