May unemployment benefits be denied where an employee authorized to use medical marijuana under state law tests positive for the drug on a workplace substance abuse test, is fired under the employer’s zero tolerance policy, and seeks unemployment compensation?   

Michigan’s state Court of Appeals is being asked to provide an answer. 

Rick Braska, a fork-lift driver for Challenge Manufacturing Company in Grand Rapids, was required to take a routine drug test during an examination for an ankle injury.  A registered user under Michigan’s Medical Marihuana Act (spelled with an “h”), Braska, who reportedly suffered from back problems, received a positive test result for the substance, according to published reports.  He was terminated pursuant to his employer’s drug testing policy.   

Braska sought unemployment benefits.  The state Circuit Court in Kent County, siding with Braska, said he was entitled to them. 

The Company has now taken the case to the Court of Appeals, Michigan’s intermediate appellate court.  Braska v. Challenge Mfg. Co. and State of Michigan, Dept. of Licensing and Regulatory Affairs, Unemployment Insurance Agency, Court of Appeals No. 313932.  The state’s attorney general is said to be weighing in on the side of the employer.  And recently, the Michigan Chamber of Commerce has also filed an amicus brief.  Chamber President and CEO Rich Studley explained that the lower court’s decision “puts employers in a no-win situation.” If the lower court’s ruling is upheld, he said, “employers will be forced to either ignore known drug use and jeopardize workplace safety or discharge those employees and pay their unemployment benefits and, subsequently, higher unemployment taxes.” “Michigan Chamber Asks Court of Appeals to Protect Safe, Drug-Free Workplace”.  A Chamber spokesperson reportedly told the Detroit News that when the business group backed the law in 2008, it did so based on the idea that employers were not required to accommodate the use medical marijuana.  Advocates of medical marijuana also are speaking out on these cases, claiming that employees permitted by state law to use the drug should not be denied unemployment benefits for testing positive for the substance on a workplace drug test where, they argue, the workers are not impaired on the job.   

The Court of Appeals has not yet set a date for argument.  Another case, involving a hospital CT scan technician, who also possessed a state medical marijuana card and was fired after receiving a positive test result for the substance, and likewise sought unemployment benefits, is also slated to be considered by the court.