Can you be fired in Michigan for using medical marijuana?

Joseph Casias injured his knee at the Battle Creek Wal-Mart where he worked in 2009.

Per company policy, he took a drug test. It came back positive.

Casias had been using marijuana at home to treat pain from sinus cancer and an inoperable brain tumor. 

The American Civil Liberties Union sued on his behalf for wrongful discharge in violation of the Michigan Medical Marihuana Act.

A U.S. District Judge sided with the company. The U.S. Sixth Circuit Court of Appeals later upheld the ruling.

In Michigan, it is legal for a business to fire an employee for using medical marijuana, even if the use occurs outside of business hours.

"Basically, a private business can penalize someone for being a medical marijuana patient," said Joshua Covert, a defense attorney who represents people charged with marijuana-related offenses.

A section of the state's Medical Marihuana Act says that patients with medical marijuana cards are protected from penalties, including "disciplinary action by a business or occupational or professional licensing board or bureau."

The Sixth Circuit has interpreted the word "business" as a modifier referring to licensing boards or bureaus.

“Based on a plain reading of the statute, the term 'business' is not a stand-alone term as Plaintiff alleges, but rather the word 'business' describes or qualifies the type of 'licensing board or bureau,'" Judge Eric Clay wrote in response to Casias' claim.

It is not legal, however, for someone fired for using medical marijuana to later be denied unemployment benefits.

The Michigan Court of Appeals in 2014 sided with three employees who had been denied unemployment benefits after being fired for using medical marijuana.

The Unemployment Insurance Agency appealed that ruling in 2015, but the Michigan Supreme Court refused to hear the appeal.

Michigan is an at-will employment state, which means an employer can fire someone for any reason. There is no burden for the employer to establish "just cause."

Legally, employees can refuse to take a drug test, but they can be fired for that refusal.

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Twenty-nine states and the District of Columbia have legalized medical marijuana, but state laws differ on how they address — or don't address — the drug in the employment context.

"I'm not sure if there's any state that has really figured out this issue completely," said Matthew Abel, a marijuana legalization advocate and the founder of the Detroit law firm Cannabis Counsel P.LC. "Michigan has an opportunity to really be a leader on this."

Sixty-three percent of Michigan voters approved the use of medical marijuana in 2008.

A month later, lawmakers enacted the state's Medical Marihuana Act , a series of laws regulating physician-approved marijuana for people with medical conditions, including cancer, post-traumatic stress disorder, HIV/AIDS and chronic pain.  

Wendy Block, chief lobbyist for the Michigan Chamber of Commerce, said the chamber came out as "neutral" in 2008 on the issue of medical marijuana under the assurance that the Medical Marihuana Act would not affect private employers.

She noted that, under federal regulations, businesses must enforce zero-tolerance drug policies for dangerous professions like truck driving.

The issue is further complicated because, at the federal level, marijuana is still illegal. The Drug Enforcement Agency considers marijuana a Schedule 1 controlled substance, which is the same class as heroin.

Civil service workers in Michigan can be punished for a positive test result due to medical marijuana because the state uses federal standards for its drug testing rules, according to a spokesman for the Michigan Department of Technology, Management and Budget.

Here is a map of every marijuana dispensary in Lansing as of August 2016

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In 2015, state Rep. Sam Singh, D-East Lansing, who is now the Michigan House Minority Leader, introduced a bill which would have amended the Medical Marihuana Act to include explicit protections for workers.

The bill, which expired last term, sought to prevent businesses from firing or otherwise disciplining workers who test positive for medical marijuana, provided the use does not "hinder job performance" and is "not incompatible" with the employee's work.

As outlined elsewhere in the act, the bill would not require an employer to "accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana."

Singh has not re-introduced the bill this term, and his office did not respond to requests for comment about whether he plans to revisit the issue.

Covert, the defense attorney, would like to see stronger employment safeguards for Michigan medical marijuana patients but described "corporate interests" as a hindrance.

"The people overwhelmingly support medical marijuana, but the legislature has been slow to respond," he said. "The legislature doesn't know enough about cannabis to regulate it."

Cliff Hammond, a senior attorney at Foster Swift's Employers Services, is hoping the bill does not get a second wind.

"It would cause an employer to worry about liability just because they're trying to enforce a drug policy in the interest of safety," Hammond said. "It causes a complicated scheme. We have something that's already working. Right now, it's up to the employer."

Block, the Chamber of Commerce lobbyist, echoed that criticism, saying that the proposed amendments would make it more onerous to run a business.

There is no on-demand test to determine if an employee used marijuana that day. Cannabis can be detected in someone's urine for as long 30 days after use, depending on the sensitivity of the test.

This makes it difficult for companies to scientifically distinguish between employees who use drugs over the weekend and those who come to work high, said Deborah Brouwer, a partner at Nemeth Law PC, a firm specializing in labor law.

"The science hasn't caught up yet," said Brouwer. "It does present a problem for employers. Some of our clients are rethinking their policies. I think it will change even more once someone can develop better testing."

As marijuana use becomes more accepted, businesses are liberalizing their drug policies, Brouwer said, though industries that require driving or operating heavy machinery have held fast to their zero-tolerance rules.

The advantage of a zero-tolerance policy, Brouwer said, is that it's clear-cut to enforce and explain to workers.

"It's treating everyone the same," Brower said. "In a sense, it's about fairness."

Abel, a member of the NORML Legal Committee to legalize marijuana, believes businesses will eventually relax their marijuana policies to keep up with society's changing mores.

"The more enlightened businesses don't see marijuana as a detriment," said Abel, who said he's been using marijuana for decades. "Businesses that deal with creativity, especially, are starting to realize that cannabis and creativity go together."

The most significant hurdle will be insurance companies that require zero-tolerance policies from their business clients, he predicted. 

"The insurance companies control the world to a great extent," Abel said. "Even so, insurance stats are starting to prove that cannabis is not unsafe for the economy."

Economic incentives also may motivate companies to relax their drug policies, Hammond said.

"At a certain point, when the economy's good and it's harder to find workers, the business has to weigh the risks of damage and injuries with the ability to get bodies into the door," Hammond said.

Other states, particularly those with legal marijuana, have struggled to fill positions at jobs that mandate drug testing, Block said.

For that reason, the Michigan Chamber of Commerce opposes a proposed 2018 ballot measure from the Coalition to Regulate Marijuana Like Alcohol that would legalize recreational marijuana statewide.

Another group, Abrogate Prohibition Michigan of Midland, is also pushing for a 2018 ballot measure. If approved by voters, that measure would legalize recreational marijuana by amending the state's constitution.

If one of the measures gets to the ballot and is approved by voters, Brouwer speculated that more businesses will implement policies that treat marijuana like alcohol.

"Alcohol is not illegal," Brouwer said. "You still can't show up to work drunk.""

Contact Sarah Lehr at (517) 377-1056 or slehr@lsj.com. Follow her on Twitter @SarahGLehr.