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Public Employers May Refuse to Hire Applicants Who Use Medical Marijuana

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Brandon Grysko, Esq.

On February 19, 2019, the Michigan court of appeals upheld the Lansing Board of Water and Light's ability to disqualify a job applicant on the basis of medical marijuana use.

In Eplee v Lansing, the plaintiff was a job applicant for a position with Board of Water and Light. The Board conditionally offered her a job, pending the results of a drug test. Eplee tested positive for marijuana, and the Board rescinded its conditional offer. Eplee sued under the Michigan Medical Marijuana Act (MMMA), claiming that the Board's actions were improper. The MMMA says that a medical marijuana patient (with a valid registry card) cannot be subject to "penalty in any manner, or denied any right or privilege."

Here, the court held that denial of at-will public employment was not an unlawful penalty under the MMMA. Eplee failed to show any entitlement to public employment. In order for the MMMA's immunity provision to apply, "an individual must show some pre-existing entitlement or right or benefit that has been lost or denied." In the case of at-will public employment, there is no such entitlement; therefore, the immunity provision did not apply to Eplee's circumstances.

The court's reasoning in this case makes it clear that public employers, like cities and counties, may continue to enforce their drug policies. Job applicants aren't entitled to be hired and at-will employees aren't entitled to remain employed. Therefore, the medical marijuana act doesn't provide protection in those cases.

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