Federal Appellate Court Rules Medical Marijuana Law Does Not Protect Worker In Use of Medical Marijuana

There is an interesting case out of Michigan concerning medical marijuana — and the basic requirements of drafting a medical marijuana law. We previously discussed the case of Joseph Casias. The United States Court of Appeals for the Sixth Circuit ruled (in the opinion below) that Wal-Mart was allowed to allegedly fire an employee for using medical marijuana. That would seem a curious ruling given state law protecting people in the use of medical marijuana. However, the court found that the drafting of a key line left workers without protection for termination.

Joseph Casias was fired after he failed a drug test. Casias showed that he has inoperable brain tumor and sinus cancer. He also invoked the Michigan Medical Marijuana Act (MMMA) protecting workers for disciplinary action “by a business or occupational or professional licensing board or bureau.” The case came down to a matter of simple statutory interpretation over whether “business” is a stand alone noun or a description of one of the type of licensing boards or bureaus.

The relevant provision reads:

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act . . . .
Mich. Comp. Laws § 333.26424(a).

The two alternative interpretations of this provision could not produce a more extreme difference in application. If “business” refers simply to a “business,” the law would afford a needed protection for those seriously or chronically ill persons using medical marijuana to relieve their pain. That would seem an obvious and necessary protection as part of a medical marijuana law. However, the Court found such an interpretation to be counterintuitive and wrong (affirming the same view of the district court):

Based on a plain reading of the statute, the term “business” is not a stand-alone term as Plaintiff alleges, but rather the word “business” describes or qualifies the type of “licensing board or bureau.” Mich. Comp. Laws § 333.26424(a). Read in context, and taking into consideration the natural placement of words and phrases in relation to one another, and the proximity of the words used to describe the kind of licensing board or bureau referred to by the statute, it is clear that the statute uses the word “business” to refer to a “business” licensing board or bureau, just as it refers to an “occupational” or “professional” licensing board or bureau. The statute is simply asserting that a “qualifying patient” is not to be penalized or disciplined by a “business or occupational or professional licensing board or bureau” for his medical use of marijuana.

These interpretive difference raise fundamental questions under “legisprudence” scholarship. Here you have two equally credible interpretations produced by a “gap” or ambiguity. Some would argue that a court should gravitate toward the narrow textual meaning given the sweeping impact of a broader interpretation — affecting every business in Michigan. Rather than assume such an interpretation, the court can leave the matter to the legislature.

Another approach, advocated by Professor Jonathan Macey, would apply the “public-regarding purpose” of the law — fill in the gap or ambiguity by reference to the stated public-regarding purpose” of the law and thus protecting the workers. Others like Professors Eskridge and Pellar have written even more aggressive use of judicial power in such cases to protect groups or individuals who may not have sufficient protection in the legislature or the market.

Of course, however, the court comes out, none of this excuses the actions of Wal-Mart in terminating a worker who is facing a chronic and painful illness and using medical marijuana at the suggestion of a doctor. Wal-Mart has been long accused of terminating sick workers.

What do you think?

Here is the opinion: 12a0343p-06

51 thoughts on “Federal Appellate Court Rules Medical Marijuana Law Does Not Protect Worker In Use of Medical Marijuana

  1. I do have a problem in this area. Wal-Mart is one thing and I see no reason for the termination, really. But, In my field, electrical contracting, the use of any drug that impairs performance or awareness can constitute a hazard to the individual and the others, both my employees, and clients, or in truth pure bystanders. There I would consider the hazard to others to outweigh the supposed harm to the user. But would the Law?

  2. I’m surprised that Walmart terminated a terminal ill worker. They’re losing out on a life insurance payout that would probably exceed his wages.

    Apart from a few safety related jobs where being drug free is essential to the safety of others (airline pilot, train engineer, etc – jobs that I’m not qualified for) I wouldn’t consider working for a company that requires drug testing. If I doing the job, it’s no one’s business what I inhale or ingest on my own time. If I’m not doing the job, fire me for that.

  3. The worst part of all this, as I recall the story, is that this individual was one of that store’s best performing individuals. Repeatedly winning ’employee of the month’ and other awards based on high (pun not intended) performance.

    To me it seems clear that the intent of the law is to protect workers from being fired for using their medicine.

    This is a rule based on a stupid technicality that’s protecting one of the shadiest corporations in the oligarchy.

  4. I still do not see either point in that being “drug free” is essential for others’ safety. It’s one thing if one chooses to imbibe on the job whether it be cannabis or alcohol etc. However, if there are no effects the next day and the person is sober when he comes to work, he should not be punished or denied work because of a blood test which says he was doing something on his own time. That person is no danger to anyone and there is no justification for the dismissal. It seems that misinformation and a bias against cannabisresulting from 7+ decades of paranoia and propaganda are showing their ugly heads in this situation.

  5. Appreciate the effort by the Professor in showing the different ways of reading, ie understanding how a law should be interpreted. Just goes to show that much that is legislated is not a firm basis to enforce the “peoples'” will.

    I would definitely not depend on using english useage
    as a reason for decision. Supposed to be tested before enactment does not mean that they are tested.

    Statement of intents should instead be better guidance.

  6. Len has hit the nut on this one – if you are doing your job well and are not causing problems who cares if you are getting high? Its become a huge industry in America to perform drug screenings for new hires and I sort of get the reason for that. But if the person shows up regularly, does their job competently (which this person did exceptionally well) then whats the problem.

    A year ago I underwent radiation for throat cancer, I was very ill, I was on pain killers, I was weak. I stayed on the job & performed well enough until the last couple of weeks. Would the company been allowed to fire me because I had legally obtained oxycodone in my system while at work?

    Wal-Mart seems to go out of its way to cultivate a bad reputation and this silliness is just another brick in the wall.

  7. Darren,

    Not sure it was you. WS has swallowed two posts and done other goofy things today.

    Your example is good. There it is clear that it is the patient acting on the advice of a health care professional who makes the decision. Not based on where the patient is employed.

    The Michigan interpretation is plain stupid. Wonder how many states do like Michigan?

  8. A ridiculously cramped interpretation clearly intended to thwart the plain meaning of the statute. After all, under what possible scenario does the court contemplate that an employee would ever be subject to discipline from a “business licensing board” in the first place?

    An occupational or professional licensing board sure, since those would groups have direct authority to grant a license to the individual practitioner, but a business licensing board deals with granting the company itself a license to operate, and is rarely, if ever, given jurisdiction over the prosecution of the company’s individual employees.

    And yes, maybe the MI legislature could have been more clear by inserting a comma after the word business, but for the Federal court to bootstrap such a tortured grammatical picayune into a reason for emasculating the clear intent of the state legislature (what about ‘denied ANY right or privilege’ does the court not understand?) shows that either the court does indeed have its own ‘legisprudential’ agenda or that the members have been smoking the very same stuff they are so blatantly trying to suppress.

  9. Nox Ninox X 2. Correct sir. The fix is in against medical mj at the federal level. For the court to say a simple reading of the language of the statute was counter-intuitive and then torture the language and logic to have it mean what it needed to mean to justify the desired result is simply through the looking glass.

    I would also opine that there is no gap or ambiguity in the language wherein to argue different interpretations of the meaning; this is not a meaning of “is” moment. This is a ‘looking for any excuse’ moment to give business the widest possible latitude and continue the Administration’s policy of punishing a change in drug policy coming from the bottom up.
    ***

    “When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    “The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”

  10. Oh it’s infuriating that Wal-Mart could get away with this (which they will because this guy has no energy or money to get the lawyers behind him to sue Wal-Mart for what they have done) and it’s even more infuriating that a gaggle of attorneys could come up with such nonsensical drivel. Medical Marijuana legislation is meaningless and useless if you can interpret it out of existence; the use of “Marijuana Use as crime” is part of a government scandal that sees certain laws staying on the books for the specific and obvious purpose of having charges to use to harass certain “elements” of the population. Below contempt; obvious; part and parcel of the whole fraudulent system of “law and order.” Cheap fake junk sold to us by the same methods with which everything ELSE from Wal-Mart is sold to us.

    Boycott them for crissake, do not darken their doorways.

  11. This is not a study of the meaning of “is”, it is the meaning of “or”.

    Curious interpretation of the word “or”. Business OR regulatory agency. NOT THE SAME THINGS.
    They took simple language and tortured it so they could torture a man with cancer.
    How absurd, but our justice department has very little justice these days. Or common sense. Huh, according to the court, justice OR common sense are the same exact things!

  12. like a vision it came, and it should have come to you all.
    Business is not used usually as an adjective. Or?
    Rather one would say: Commercial, or some other approprita adnective. Business is not an anjective.

    Otherwise as Lotta says—–as usual.

    Matt, we all forsake our responsibility to mankind when we go to our usual grocery, etc etc etc store.
    Don’t need to protest adherence to doctrinal dogma cuz you do Walmart.

  13. @shano
    This is not a study of the meaning of “is”, it is the meaning of “or”.

    It’s also a study of the meaning of “including but not limited to”, which the court interprets as “limited to”.

  14. Isn’t the problem basically that as long as mj is on the federal drugs list, it really doesn’t matter WHAT the state/people wants/want. Since Federal law trumps State law, all fifty states could approve it’s use and even de-criminalize it and the Federal drug laws would still prevail.

  15. Shano,
    “btw, I have not set foot in Wal Mart for over 25 years. This is one more reason to stay away from this terrible business.”

    You mean: “Stay away from this terrible business or selling stuff or doing stuff establishment in the business of goods or services or good services or retailing or providing or something” right?

    Get it STRAIGHT, man. God only KNOWS what you will be charged with (or without or not).

    Matt J, kiss your what, business or pleasure whatever? (Don’t even think about it) (or) (not that business)(or)(agency ahem) you got that? Yeah, so bite me. And yes, the law is a a55, and I hope you never get discriminated against by a business or agency because if you do the law won’t help you.

  16. Kraakan

    The federal government lists Marijuana as a Schedule 1 Drug as it contains Tetrahydrocannabinols (THC). As such it is, by definition:

    1.The drug or other substance has a high potential for abuse.
    2.The drug or other substance has no currently accepted medical use in treatment in the United States.
    3.There is a lack of accepted safety for use of the drug or other substance under medical supervision.

    This runs into conflict with state laws that have declared a “Medical Marijuana” provision, which are prohibited under 2) above.

    This is odd because there actually is a prescription med having the generic name of Dronabinol which is indicated for treatment of weight loss and apetite issues for AIDS patients and to treat side effects of Chemotherapy induced nausea.

    There is an initiative on the upcoming ballot in Washington to remove the criminal and civil penalties associated with marijuana for adults and do what Washington does best, tax the heck out of it. I would imagine there would be a substantial risk of suddenly having the DEA make a friendly visit to any business that sold it.

    Washington Initiative i-1149

  17. Malisha.

    Re: Shano. I wondered when someone other than I would call him for “Walking without Brain using loose tongue”???
    Is that committable? He/She was once a dependable clean food addict promoting hemp for making cars, etc.
    He went over the top over the summer and may never recover.

    Matt has a tic which comes on once in a while. I called him on it and he promised but regresses.

    Matts: NO NO NO! You are amazingly smart at times. Wait until that occurs. Stop stomping your foot.

  18. Congress needs to draft some legislation on medical coverage for employees. One particular area which needs to be eliminated is ScaliaCare or health coverage for federal judges completely paid for on the public dime. The Sixth Circuit can then hone in on interpreting that law.

    There is something that we can do for Walmart. Go in once a week, buy nothing and let off some rear end gas.

  19. Another reason I don’t do business with WalMart….

    If the person isn’t doing the job, then get rid of them, but then would WalMart have a incentive to get rid of sick employees? Everyone goes that’s on medicine then?

    Another reason they need a Union….LoL

  20. This interpretation is facially incorrect — the secondary clause is irrelevant by any reading of the preceding qualifiers, where it is specifically introduced as merely an unlimiting example.

    To see this, look at how the clear meaning of the sentence would be completely unchanged even were it to read as follows:
    “… shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to monkeys flying out of the plaintiff’s butt.”

    On what basis are the words “in any manner”, “any right or privilege” and especially “including but not limited to” handwaved away to profit an unscrupulous employer?

  21. Just to add, there’s no reasonable argument to be made that an implied comma should be magically inserted after “disciplinary action” to break the secondary clause in a way that would limit the entirety of the statement’s targets to “business or occupational or professional licensing board(s) or bureau(s)” without making a mockery of the words “arrest and prosecute”.

  22. idealist707 1, September 21, 2012 at 3:37 pm

    Matt, we all forsake our responsibility to mankind when we go to our usual grocery, etc etc etc store.
    Don’t need to protest adherence to doctrinal dogma cuz you do Walmart.
    =====================
    One stop shopping. Capitalism. Walmart won.

  23. Malisha 1, September 21, 2012 at 6:12 pm

    Shano,
    “btw, I have not set foot in Wal Mart for over 25 years. This is one more reason to stay away from this terrible business.”

    You mean: “Stay away from this terrible business or selling stuff or doing stuff establishment in the business of goods or services or good services or retailing or providing or something” right?

    Get it STRAIGHT, man. God only KNOWS what you will be charged with (or without or not).

    Matt J, kiss your what, business or pleasure whatever? (Don’t even think about it) (or) (not that business)(or)(agency ahem) you got that? Yeah, so bite me. And yes, the law is a a55, and I hope you never get discriminated against by a business or agency because if you do the law won’t help you.
    ============
    Malisha, I don’t even know what you’re talking about.

  24. Exactly, Matt. When a law sets forth something easy to understand, with a little bit of grammatical equivocation, still, we really know what it means. I was just being funny, writing something totally incomprehensible, as a comparison. Just my twisted humor — no offense meant.

  25. Oh my, Malisha. You don’t know what you’re talking about. The “law” doesn’t set forth anything easy to understand.

    It’s a matter of interpretation. Do you know who gets to interpret? The million dollar question. What happens when somebody else gets to interpret?

  26. Matt J: “Oh my, Malisha. You don’t know what you’re talking about.”

    Uh oh, little bit silly, Matt. I’m gonna stop talking funny to you if you keep this up. :mrgreen:

  27. Darren Smith: >”There is an initiative on the upcoming ballot in Washington to remove the criminal and civil penalties associated with marijuana for adults and do what Washington does best, tax the heck out of it.”<

    What a great idea! If the Feds dropped this stupid 'war on drugs' and did exactly what Washington is trying to do, we would have the national debt paid down in one year! I'm all for it!

  28. Malisha 1, September 23, 2012 at 12:56 am

    Uh oh, little bit silly, Matt. I’m gonna stop talking funny to you if you keep this up. :mrgreen:
    ==============

    I was just being funny, writing something totally incomprehensible, as a comparison. Just my twisted humor — no offense meant.

    None taken.

  29. Malisha contributed:
    never work.

    Logic and government do not mix.

    ~+~
    Imagine government smoking weed !!

    Can’t have government bureaucrats as dopers; Any futher mind-numbing of The black hole of stupidity and the universe would fold in upon itself.

  30. bettykath said:

    “I wouldn’t consider working for a company that requires drug testing. If I doing the job, it’s no one’s business what I inhale or ingest on my own time. If I’m not doing the job, fire me for that.”

    So in other words, you’re more comfortable allowing someone under the influence in the work setting to cause injury or death to coworkers first, and then get fired – then you are in hurting their feelings before an incident?

    Sorry, Bettykath, but I submit that philosophy can only be shared by those who haven’t seen many industrial injuries up close & personal.

  31. PatricParamedic 1, September 25, 2012 at 2:21 am

    bettykath said:

    “I wouldn’t consider working for a company that requires drug testing. If I doing the job, it’s no one’s business what I inhale or ingest on my own time. If I’m not doing the job, fire me for that.”

    So in other words, you’re more comfortable allowing someone under the influence in the work setting to cause injury or death to coworkers first, and then get fired – then you are in hurting their feelings before an incident?

    Sorry, Bettykath, but I submit that philosophy can only be shared by those who haven’t seen many industrial injuries up close & personal.
    =================================================
    Had to take many piss tests. Got my locker searched several times. They never found anything. It’s part of doing business.

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