On February 19, 2019, the Court of Appeals ruled in Eplee v City of Lansing that an employer’s rescission of a conditional at-will employment offer because of a positive THC test is not a penalty under the Michigan Medical Marihuana Act (“MMMA”).  This Act protects, “[a] qualifying patient who has been issued and possesses a registry identification card” from “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. . .”  Since the statutory enactment, a public debate has ensued regarding what constitutes employment penalties, rights and privileges.

The City of Lansing and Lansing Board of Water and Light (“City”) offered the plaintiff an employment-at-will position, conditioned on passing a drug screen.  The plaintiff revealed her status as a qualified patient under the MMMA, but the City rescinded its employment offer when the plaintiff tested positive for THC.  The plaintiff sued, and the trial court granted summary disposition in favor of the City on the basis of governmental immunity, lack of contract, and the job being at-will.

On appeal, the appellate court focused on whether employment-at-will operated as an independent right or privilege that invoked MMMA’s protection against an adverse action. The appellate court reasoned that there is no legal right to at-will employment which is terminable with or without cause. Since the City could rescind the at-will employment offer for any reason, the MMMA offered no protection. As the appellate court stated, “the MMMA does not prevent [someone] from losing that which she never was entitled to have in the first place.”

The decision may have application beyond an employment context.  The Eplee decision indicates that Michigan courts will evaluate whether a party has an independent legal right before invoking the MMMA protections.