In the wake of the decriminalization and outright state legalization(s) of marijuana, there are some inchoate legal conflicts brewing around office water coolers. While some "patients" here in Michigan can legally possess and use marijuana, it remains on Schedule 1 of the federal Controlled Substance Act.

Despite the continued federal illegality of marijuana, it is nevertheless an "employer beware" workplace environment here in Michigan. Some states [Illinois, Maine, Connecticut, and Rhode Island] have gone so far as to protect employees from workplace discrimination on the basis of their certified medical pot use; sounds like an employment lawyers dream [or nightmare] to us here at the Law Blogger.

Generally, however, state laws do not provide much guidance, especially to employers, regarding medical marijuana use. Some issues that are percolating:

• Can employers test for marijuana? 
• Can workers come to work high on medical marijuana?
• What if the job is highly skilled labor, or involves a safety component?
• If an employee is terminated due to marijuana-based "misconduct" is the employee entitled to unemployment benefits?

To date, the chief case to address the workplace marijuana issue is Coats v Dish Network from Colorado. The case involved a quadriplegic employee's use of medical marijuana. The state law prohibits an employer from firing an employee for participating in any "lawful activity".

The Coats court held that, because marijuana use is a violation of federal law, it does not afford the employee protection, even though Coats had a valid medical marijuana certification. The unfortunate aspect of the case is that Coats, as a quadriplegic in constant discomfort but nevertheless an excellent employee, was a poster-child for the legitimate use of medical marijuana.

Local employment lawyer Jason Shinn concludes that, because of its Schedule 1 status, Michigan employers do not need to accommodate pot-smoking employees. Shinn is aware, however, of a recent determination by the Michigan Unemployment Insurance Agency that a discharged medical marijuana employee was not disqualified from receiving unemployment benefits.

The question, however, is whether the medical marijuana eligibility determination was an Agency-wide policy determination, or a fluke. The UIA is not saying, at least not on its web site.

We here at this blog expect these workplace issues will arise with more frequency as marijuana become more acceptable in society as a whole. Despite is overall acceptance, the question remains: is there a place for marijuana in the workplace?

As an employer of lawyers and paralegals entrusted with peoples' lives, we say, "no".

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