Lansing — Michigan Attorney General Dana Nessel says workers who lose their jobs over marijuana use in their personal time, not affecting their performance on the clock, should get unemployment benefits.
Nessel, a Democrat and the state’s top law enforcement official, made the argument in a brief filed Monday with the Michigan Unemployment Insurance Appeals Commission. The seven-member panel is weighing three cases focused on individuals who tested positive for marijuana.
“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,” Nessel’s brief says. “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.”
Under Michigan law, individuals can be disqualified from benefits if they lose their job over a positive drug test. However, the law defines “drug test” as a test to detect the “illegal use of a controlled substance.”
The attorney general said a marijuana test is not a “drug test” under state law’s definition of the term because marijuana is not an illegal drug in Michigan. State voters legalized the use of marijuana for those 21 years and older through a ballot proposal in 2018.
The commission is weighing three cases that have already been ruled on by administrative law judges. In two of them, the judges agreed the individuals should get benefits. In one, the judge said the person should be disqualified.
According to Nessel’s brief, one of the individuals — none of them were named in the filing — was injured at work and was required to take a drug screen. The person tested positive for marijuana and was fired for that reason less than a week later.
An employer involved in one of the matters contended that because it had a policy against marijuana use, the worker’s actions amounted to “misconduct” that warranted the loss of jobless benefits.
The commission’s decisions are of “statewide importance” and will test the state’s “statutory commitments to worker protections and personal freedom,” Nessel wrote in her brief.
“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.