Michigan AG Says Unemployment Benefits OK for Off-The-Job Pot Use

Michigan Attorney General Dana Nessel argued in a legal brief filed on Monday that workers who are fired for using cannabis off the job should be eligible for state unemployment benefits. The brief was filed with the Michigan Unemployment Insurance Appeals Commission, which is deciding the cases of three employees who were fired for testing positive for cannabis metabolites in drug screenings.

In the brief, Nessel wrote the commission’s decisions in the cases are of “statewide importance,” and that the issue “tests the State’s statutory commitments to worker protections and personal freedom.”

“The commission’s ruling on this issue will directly impact many law-abiding Michigan workers who may be terminated for the use of marijuana,” she said.

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

Michigan Attorney General: Private Cannabis Use Not Misconduct

Nessel’s brief argues that employees fired for marijuana use that does not impact job performance are not disqualified from receiving unemployment benefits under the “misconduct’ or “illegal drugs” provisions of Michigan employment law. In the case of an HVAC worker who was fired after a minor collision in a company vehicle, the brief holds that the employee’s private use of marijuana did not constitute “misconduct connected with the individual’s work.”

“Of course, an employee discharged for knowingly using an intoxicating substance at work could be disqualified for benefits, whether the substance was a legal one like alcohol or marijuana, or an illegal one,” the attorney general’s office wrote in the brief. “But employers cannot use a code of acceptable conduct to avoid paying unemployment benefits to workers who, on their own time, engage in legal behavior the employer simply does not like.”

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

Additionally, while marijuana is still legal under the federal Controlled Substances Act, the brief notes that marijuana metabolites are not included in the legislation’s list of banned substances. The opinion is consistent with the administrative law judge’s ruling in one case, which found that while “the THC metabolite may be indicative of some exposure to marijuana in the past, it is not a controlled substance.”

Nessel noted that a ruling by the commission in favor of the employees would be in line with voters’ intentions as expressed through cannabis legalization.

“For too long, marijuana had been widely perceived by policymakers as a corrupter of the social fabric—a theory riddled with racial stereotypes and resulting in severe over-incarceration, among other things,” the attorney general wrote in the brief. “To close the chapter on this sordid history, the people broadly expressed their intent ‘to prevent arrest and penalty for personal possession and cultivation of marihuana’ with the adoption of the” MRTMA.

Nessel went on to write that the legalization bill protects workers’ right to legally consume cannabis.

“The people spoke loud and clear when they voted in 2018 to legalize marijuana once and for all,” Nessel said. “Nobody over 21 can be penalized or denied any right or privilege solely for legally using marijuana, and employers cannot control their employees’ private lives by calling the legal use of marijuana outside of work hours ‘misconduct’.”