Last week, the Michigan Court of Appeals released an unpublished opinion in Eplee v City of Lansing, No. 342404 (February 19, 2019). In that case, the plaintiff, Angela Eplee, applied for, and was conditionally offered, a position with the Lansing Board of Water and Light (the “BWL”). But when she tested positive for THC, the BWL retracted its offer despite Eplee’s status as a cardholder under the Michigan Medical Marijuana Act (the “MMMA”). Eplee then sued the BWL, claiming that the MMMA prohibited discharge based solely on her MMMA‑permitted THC use.
The court rejected Eplee’s claim. It reasoned that the MMMA does not act as a “sword” but only as a “shield.” In other words, the MMMA protects a cardholder from arrest, prosecution, penalty, or denial of “any right or privilege,” including a civil penalty or disciplinary action by a business and certain boards or bureaus. The MMMA does not, however, grant any such right or privilege. The court observed that Eplee had applied for an at‑will position, and at‑will employment does not guarantee a continuing right to employment. Because she had no legal interest in employment with the BWL, there was no employment right, held by Eplee, for the MMMA to protect – consequently, there was nothing for which the MMMA could act as a shield. The court concluded Eplee had no cognizable legal claim, and it dismissed her action.
So, what does this case mean for school employers? Essentially, the result is that the MMMA does not prohibit school employers from terminating or disciplining at‑will employees. Other employees, such as tenured teachers, possess a property interest in continued employment via the Teacher Tenure Act. The MMMA does generally protect medical marijuana users with such an interest. For this reason, Eplee does not have as large of an impact for school employers as it may for employers who employ only at‑will employees.
The case is likely to be appealed to the Michigan Supreme Court, which will have the final word on the matter, provided it chooses to weigh in on the claim. Given that the case could proceed on appeal, the legal issue is not entirely settled. So, it may be prudent to wait and see before taking action against an at‑will, medical‑marijuana‑card‑holding employee if the employer is inclined to discipline or discharge the employee. In the interim, Lusk Albertson will monitor the appeal and note any major updates .