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Job Offer Properly Withdrawn After Candidate Tested Positive For THC

Posted on Wednesday, July 10, 2019

A company properly withdrew its offer of employment to a job candidate who tested positive for tetrahydrocannabinol (THC) during a pre-employment drug screening, even though the candidate had a valid medical marijuana card, the Michigan Court of Appeals has ruled.

In Eplee v City of Lansing (Docket No. 342404), the Lansing Board of Water and Light (BWL) rescinded the offer of employment it had made to the plaintiff following a mandatory drug screening that detected THC in the plaintiff’s system. The plaintiff, who possessed a valid Michigan medical marijuana card, then filed this lawsuit. She asserted the BWL was prohibited from denying her “any right or privilege, including civil penalty or disciplinary action” based on her use of medical marijuana.

The Ingham County Circuit Court dismissed the plaintiff’s claims, concluding the offer of employment was conditional and did not constitute a contract of employment because it could be withdrawn any time.

The Court of Appeals agreed, finding the Michigan Medical Marihuana Act (MMMA) does not “provide an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class for users of medical marijuana.”

Judges Mark J. Cavanagh, Stephen L. Borrello and James Robert Redford were on the panel that issued the published opinion.

No MMMA Violation

In its decision, the Court of Appeals scrutinized the language of § 4(a) of the MMMA. That section says:

“A qualifying patient who has been issued and possesses a registry identification card is not 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 marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed a combined total of 2.5 ounces of usable marihuana and usable marihuana equivalents, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. The privilege from arrest under this subsection applies only if the qualifying patient presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the qualifying patient.”

When viewed in its entirety, the plaintiff’s claim “is an attempt to use § 4(a) of the MMMA as a sword to obtain a protected right to employment rather than as the shield of protection that is the true function of §4(a),” the Court of Appeals wrote. “But §4(a) of the MMMA does not provide such a right. Notably, there is no language in this statute related to ‘employment.’”

Moreover, the MMMA “does not create affirmative rights but instead provides immunity from penalties and the denial of rights or privileges based on the medical use of marijuana,” the Court of Appeals explained. “In this case, plaintiff cannot show that she incurred such a penalty or was denied such a right or privilege because the harm she suffered was the loss of an employment opportunity in which she held absolutely no right or property interest.”

In conclusion, “the plain language of §4(a) of the MMMA is clear that the statute does not provide for a cause of action in instances such as presented here, where a plaintiff cannot demonstrate that he or she was ‘subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege … for the medical use of marihuana in accordance with [the MMMA],’” the Court of Appeals wrote. “The statute does not provide an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class for users of medical marijuana.”

As a result, the plaintiff “failed to allege facts showing that she suffered the type of harm contemplated under 333.26424(a), i.e., as applicable here, a ‘penalty,’” the Court of Appeals stated. “This statute therefore does not provide plaintiff a cause of action under these circumstances, and plaintiff has thus failed to state a claim on which relief could be granted.”

At-Will Employment

The Court of Appeals continued by examining the plaintiff’s breach-of-contract claim.

The plaintiff “failed to allege any facts to support a conclusion that the conditional offer of employment was not for at-will employment,” the Court of Appeals wrote. “Plaintiff failed to make any allegations that the conditional offer made by the BWL included a promise that employment would be for a definite term or that employment could be terminated only for just cause. More specifically, plaintiff has not alleged that the offer included a promise that it would only be rescinded for just cause. Accordingly, the BWL could withdraw the offer of employment at any time, for any reason or no reason at all.”

In addition, “it is clear that §4(a) of the MMMA does not create an affirmative right protecting the perceived employment rights of plaintiff,” the Court of Appeals said. “As such, plaintiff cannot rely on §4(a) of the MMMA to gain an enforceable contractual right to employment where no such right previously existed.”

Therefore, because the plaintiff did not make allegations sufficient to show “there was a promise on the part of the BWL limiting its right to withdraw the offer or otherwise terminate plaintiff’s employment, plaintiff has failed to state a claim for breach of contract on which relief could be granted,” the Court of Appeals concluded. “Consequently, the trial court did not err by granting summary disposition on this claim ….”

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