Michigan AG Says Unemployment Benefit For Non-Professional Pot Use

Michigan Attorney General Dana Nessel argued in a legal brief filed Monday that workers laid off for using cannabis outside of work should be eligible for state unemployment benefits. The order was filed with the Michigan Unemployment Insurance Complaints Board, which is ruling on the cases of three employees fired for testing positive for cannabis metabolites in drug screenings.

In the letter, Nessel wrote that the decisions of the commission in the cases were “of national importance” and that the topic “tests the legal obligations of the state to protect workers and personal freedom”.

“The Commission’s decision on this issue will have a direct impact on many law-abiding workers in Michigan who may be fired for marijuana use,” she said.

In two cases, an administrative judge ruled that the sacked employees were eligible for unemployment benefits under state law because marijuana was legal under the Michigan Regulation and Taxation of Marijuana Act (MRTMA), the cannabis legalization initiative passed by voters in 2018 is. In the third case, the judge ruled that a positive test for marijuana metabolites excludes the worker from unemployment benefits.

Michigan Attorney General: Personal Cannabis Use Not a Malpractice

Nessel’s brief argues that employees fired for using marijuana that does not interfere with job performance will not be excluded from receiving unemployment benefits under the “misconduct” or “illegal drugs” provisions of the Michigan Labor Code. In the case of an HVAC employee who was laid off after a minor accident in a company vehicle, the brief stated that the employee’s private use of marijuana was not “individual work misconduct.”

“Of course, an employee who is dismissed from work for knowingly using an intoxicating substance can be disqualified for performance, regardless of whether it is a legal substance such as alcohol or marijuana or an illegal substance,” the attorney general wrote in the Letter. “But employers cannot use an acceptable code of conduct to avoid paying unemployment benefits to workers who behave in accordance with the law in their free time that the employer just doesn’t like.”

Nessel also argued that positive marijuana use tests are not “drug tests” under Michigan law, which defines a drug test as a test to detect “illegal use of a controlled substance”. Since marijuana is not an illegal drug, the letter states that positive test results for marijuana are not legal drug tests and are therefore not grounds for disqualification from benefits.

Although marijuana is still legal under the Federal Controlled Substances Act, the abstract notes that marijuana metabolites are not on the legislation’s list of prohibited substances. The opinion is in line with the decision of the administrative court judge on a case in which it was found that “while the THC metabolite may indicate some past exposure to marijuana, it is not a controlled substance”.

Nessel pointed out that a decision by the commission in favor of workers would match the voters’ intentions expressed through the legalization of cannabis.

“For too long, marijuana has been widely viewed by policymakers as a social spoiler – a theory steeped in racial stereotypes that has led, among other things, to severe over-incarceration,” the attorney general wrote in the letter. “To wrap up the chapter on this filthy story, with the passing of the MRTMA, people broadly expressed their intention to ‘prevent arrests and penalties for personal possession and cultivation of marijuana.’

Nessel went on to say that the Legalization Act protects workers’ right to legal cannabis use.

“People spoke loud and clear when they voted to legalize marijuana once and for all in 2018,” said Nessel. “No one over 21 can be punished or denied rights or privileges for legal marijuana use alone, and employers cannot control the private lives of their employees by labeling legal marijuana use outside of work as” wrongdoing. “”