Michigan Attorney General: Legal marijuana use shouldn’t bar unemployment benefits

In three cases that tested “the state’s legal obligations to protect workers and personal freedom,” Attorney General Dana Nessel argued that off-work marijuana use – which is legal under state law – does not prevent individuals from receiving unemployment benefits should.

The case is one of the first impressions and significant, said Nessel in a letter submitted to the unemployment insurance appeals committee on Monday.

While employers can generally retain the ability to hire and fire at will, workers should not question whether their lawful off-duty behavior leaves them without unemployment benefit should an employer exercise that skill, the letter said.

“Arguments to the contrary depend on outdated understandings of marijuana that the people of Michigan have rejected once and for all,” it reads. “The commission should obey Michigan law and state that an individual should not be deprived of unemployment benefits for off-duty marijuana use that does not interfere with their job.”

The letter gives three reasons why the commission should determine that the benefits apply to those who legally use marijuana while away from work.

First, an employer cannot view private activities conducted outside of business hours and off site that do not affect job performance as “misconduct” in order to avoid contributing to performance. Second, drug tests are designed to reveal illegal use of a controlled substance, and the tests in these cases did not detect illegal drug use since marijuana is legal.

Finally, finding that private, legal use of marijuana could result in denial of unemployment benefits would conflict with state law legalizing recreational marijuana.

The letter emphasizes that these cases do not question an employer’s right to enforce its own drug policies for the workforce, nor do they question an employee who owns or uses marijuana on an employer’s property or at work.

“Amicus understands the question of first impressions rather narrowly in these cases: whether an employee who is fired because of the use of marijuana in his spare time, outside of company property and without affecting his work performance, can be refused.” Unemployment benefits from that marijuana use alone, whether because they failed a drug test or violated a company policy, “the letter said.

In these cases, there is no evidence that any of the plaintiffs were under influence while at work, so none should be disqualified for non-work personal use only, the brief argues.

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

In the first of the three cases, an HVAC meter fitter had a car accident in a company vehicle and later took a urine test and had his hair examined. His urine test was negative, while the hair test was positive for THC, the key ingredient in marijuana. An administrative judge ruled that the applicant was not excluded from receiving benefits and that the employer is appealing.

In the second case, an administrative judge also ruled that an employee was not excluded from receiving benefits and the employer appeals. In this case, the plaintiff was a maintenance worker who was sent for a drug test after reporting an industrial accident in April 2019. He tested positive for marijuana.

The third case is a complaint by the applicant after an administrative judge ruled that the applicant was barred from receiving benefits. In this case, a forklift driver was injured after a fall in November 2019. He tested positive for marijuana but was denied use on the day of the fall.