The question is whether a private employee who is acting in accordance with the Michigan Medical Marijuana Act (MMMA), who is not intoxicated during working hours, and who tests positive for marijuana in a drug test administered in a nondiscriminatory manner is disqualified from unemployment benefits under MCL 421.29(1)(m).
This issue was explored in Jenine Kemp v. Hayes Green Beach Memorial Hospital, where Jenine Kemp, a Hospital Employee and Medical Marijuana patient under the MMMA was fired and denied unemployment benefits due to testing positive for marijuana during a hospital administered drug test. The Court in the 30th Judicial Circuit for Ingham County on appeal noted that a drug test under MCL 421.29(1)(m)(ii) is defined as a test designed to detect the illegal use of a controlled substance.
There was absolutely no evidence in the record showing that Ms. Kemp was using medical marijuana in any other manner than prescribed by the MMMA. Furthermore, the Unemployment Insurance Agency’s (UIA) own Benefit Interpretation states an individual using medical under the MMMA who is discharged for a positive drug test should not be disqualified from unemployment benefits unless the claimant is in possession of marijuana while at work, under the influence of marijuana while at work, or using marijuana while at work. Ms. Kemp did not fall into any of these categories.
Furthermore, the marijuana in Ms. Kemp’s system was not active. Rather, she tested positive for 11-carboxy-THC, which is a byproduct that is created when a person’s body breaks down THC, and merely indicates relatively recent marijuana use – not use at work.
In summary, a private employer cannot deny a terminated employee unemployment benefits due to his/her marijuana use when such use is in accordance with the MMMA.
Authored by Roger Leshinsky, Law Clerk
