December 2014 Federal Legislative Update on the Medical Marihuana Issue

By: Michelle D. Bayer

This week Congress passed the 2015 Fiscal Spending Bill which contained a provision within the 1,603 page federal spending measure which provides protections from federal interference and prosecution in the 32 states and District of Columbia, including Michigan, which have passed laws legalizing medical marihuana. President Obama is expected to sign the spending bill, making it a law.

While medical marihuana use was legalized in Michigan in 2008, under Federal law it still remains an illegal controlled substance. Starting in 2008, then in 2009 and 2010, statements by President Obama and Attorney General Holder and their representatives indicated a policy of restraint in enforcement and prosecution in states where medical marihuana use was legalized and there was compliance with state law. However, in 2011 such position revisited and larger scale providers were targeted. Despite this recent legislation, the Drug Enforcement Administration still classes marihuana as an unlawful Schedule I drug under federal law, and it is still an unlawful drug under Michigan law, outside of use allowed under the Michigan Medical Marihuana Act.

Despite the positive policy advancement for medical marihuana advocates by this recent federal legislation, it is important for employees to remember that the Michigan Medical Marihuana Act provides no protection to medical marihuana users in the employment context. Section 7, subpart (c)(2) states… “[n]othing in this act shall be construed to require an employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.” That means if the employer has a zero tolerance drug use policy and the employee tests positive for medical marihuana, the employee can be disciplined or terminated in accordance with the policy.

Further, because marihuana remains classified as an unlawful substance, it is still unclear whether Federal and State health care reimbursement programs will view the assistance with medical marihuana by participating providers, caregivers and entities as a violation of the conditions of participation.