Published in Economic Development

Appeals Court ruling upholds employer drug policy in medical marijuana case

BY Sunday, February 24, 2019 09:15pm

An appeals court ruling upheld the ability of employers to withdraw job offers to people who failed a pre-employment drug test, even if they are a legal user of medical marijuana.

In a case involving the City of Lansing and its utility, the Lansing Board of Water and Light, the Michigan Court of Appeals this week ruled that employers may withdraw a just offer from prospective at-will employees.

The Lansing Board of Water and Light had offered the plaintiff in the case a job in 2017 on the condition she pass a pre-employment drug test. The utility later withdrew the job based "the needs of the department.”

The plaintiff in the case, Angela Eplee, claimed the Lansing BWL withdraw the job offer because she was a medical marijuana user. She later filed a lawsuit in November 2017.

Because the job offer was for an at-will position, the three-judge appeals court ruled the Michigan Medical Marihuana Act “does not prevent her from losing that which she never was entitled to have in the first place,” according to the ruling that upheld dismissal of the case at the trial court.

“In the instant case, however, plaintiff cannot point to any legal right that she had to be employed by the BWL,” according to the Feb. 19 Appeals Court ruling. “If the BWL would have been able to terminate plaintiff’s employment at any time after her employment began for any or no reason, it logically follows that the BWL could rescind its conditional offer of employment at any time and for any or no reason at all.”

Appeals Court judges ruled that the plaintiff sought to use the Medical Marihuana Act “as a sword to obtain a protected right to employment rather than as the shield of protection that is the true function” of the law.

“The statute does not create affirmative rights but instead provides immunity from penalties and the denial of rights or privileges based on the medical use of marijuana,” according to the ruling. “In this case, plaintiff cannot show that she incurred such a penalty or was denied such a right or privilege because the harm she suffered was the loss of an employment opportunity in which she held absolutely no right or property interest.”

In a legal briefing to clients, attorneys at law firm Miller, Canfield, Paddock and Stone PLC wrote that public employers now “should feel comfortable maintaining and enforcing zero-tolerance drug policies for their at-will employees, including medical marijuana cardholders.”

Brandon Gardner, a Grand Rapids lawyer representing Eplee, told Michigan Public Radio that he believes the Michigan Supreme Court would reverse the ruling, if the case is appealed further.

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