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".

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #514

On the last business day of calendar 2012, Governor Snyder signed the Internet Privacy Protection Act.  With that stroke of the Governor's pen, Michigan joins just 3 other states [California, Maryland and Illinois] to enact sweeping employment legislation designed to protect employees' and students' social media accounts.

This law affects all employers, regardless of size, and also applies to public and private schools.  The IPPA prohibits employers or schools from requiring applicants to disclose their password or login information as a condition for admission, hiring or discipline.

Technically, employers and schools are prohibited from accessing a subject's "personal internet account", which is defined in the statute as:

an account created via a bounded system established by an internet-based service that requires a user to input or store access information via an electronic device to view, create, utilize, or edit the user’s account information, profile, display, communications, or stored data.

This definition covers just about every social media account you can think of; and then some.  Arguably, the IPPA applies to all employee's internet accounts of any kind; not just social media accounts.

However, there are broad exceptions to what is out-of-bounds for employers.  For example,

• Employers can still access devices owned by the employer as well as the data stored on such devices; 
• Accounts created by the employer and used for the employer's business purpose; 
• Employers can discipline employees that transfer data owned by the employer onto that employee's personal internet account;
• Employers can access personal accounts when necessary to conduct an investigation for the purpose of complying with laws; 
• Employers can access personal accounts when conducting an investigation into work-related conduct, and 
• Employers can still access any information about an employee or applicant that is available on the Internet without the use of a password or login information.

One interesting context within which the new Act will likely get some early play is in the workmen's compensation arena.  It is nothing new for insurance adjusters to track the activities of injured employees on social media sites.  The IPPA may supply an avenue of protection for employees who have had a post on Facebook taken out of context.

The Act also bars an employer from "shoulder surfing" the employee; the practice of monitoring an employee's social media site by directing the employee to log onto the site so the manager can observe recent posts.

Nor can an employer require an employee to disclose information from which the employer can then access the employee's personal internet account.

Violation of the IPPA subjects an employer to a misdemeanor conviction and a fine of $1000 as well as other civil penalties.  Violators are also subject to paying the employee's attorney fees.

www.clarkstonlegal.com
info@clarkstonlegal.com