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Why doesn't subsection c.1 protect Walmart Joe?

 

http://legislature.mi.gov/doc.aspx?mcl-333-26428

 

Because this is not a business or professional licensure question. This is an employment issue and if you read the law you will see that employers, commercial insurance, and public programs like medicaid specifically DO NOT have to honor or change their policies due to the law. It is very clear.

 

In fact, here is what the law says....

 

 

333.26427 Scope of act; limitations.

7. Scope of Act.

Sec. 7. (a) The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.

 

(b) This act shall not permit any person to do any of the following:

 

(1) Undertake any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice.

 

(2) Possess marihuana, or otherwise engage in the medical use of marihuana:

 

(A) in a school bus;

 

(B) on the grounds of any preschool or primary or secondary school; or

 

© in any correctional facility.

 

(3) Smoke marihuana:

 

(A) on any form of public transportation; or

 

(B) in any public place.

 

(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.

 

(5) Use marihuana if that person does not have a serious or debilitating medical condition.

 

© Nothing in this act shall be construed to require:

 

(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana.

 

(2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.

 

(d) Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution shall be punishable by a fine of $500.00, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marihuana other than use undertaken pursuant to this act.

 

(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.

 

One thing that has NOT been brought up is the fact the law is clear about being 'under the influence of MJ' Is a drug test evidence of being under the influence, especially since the fact a test is positive is no longer 'proof' of driving under the influence.

 

Dr. Bob

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Was really a case that Couldn't be won. For one Michigan is an at will employer state and secondly this was in federal court which doesn't recognize medical marijuana.

 

 

Yep could not win thats why the ACLU took the case so as to make a name for it's self other Lawyer's would not take the case because they new but i do feel for Joe and his Family i met him long ago inn Lansing right after he lost his job and at that time we were hoping he would win Big

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© Nothing in this act shall be construed to require:

 

(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana.

 

(2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.

 

 

 

Number 1 does not apply because no one is asking for reimbursement. Number 2 does not apply because he was not working under the influence or ingesting on the premises.

 

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be 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 2.5 ounces of usable marihuana, 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.

 

I would suggest that the above section does apply to ones right to work and any other privilege. They may be able to make the "at will" argument but there are still other laws that apply. I don't know if the Americans With Disabilities Act can be used but it is an exception to "at will."

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Number 1 does not apply because no one is asking for reimbursement. Number 2 does not apply because he was not working under the influence or ingesting on the premises.

 

 

 

I would suggest that the above section does apply to ones right to work and any other privilege. They may be able to make the "at will" argument but there are still other laws that apply. I don't know if the Americans With Disabilities Act can be used but it is an exception to "at will."

 

Good pick up on a point I made in a second post. 'Under the influence' is key, how did they determine he was under the influence. I am not suggesting he was, but it appears the key points the court looked at were the drug screen results. The second point I made was to extend the same 'reasoning' to other medications an employee could be taking... Fire everyone that comes up positive for opiates, benzos or even nicotine using the same standard for MMJ. Or don't fire any of them.

 

Dr. Bob

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Number 1 does not apply because no one is asking for reimbursement. Number 2 does not apply because he was not working under the influence or ingesting on the premises.

 

 

 

I would suggest that the above section does apply to ones right to work and any other privilege. They may be able to make the "at will" argument but there are still other laws that apply. I don't know if the Americans With Disabilities Act can be used but it is an exception to "at will."

 

No, you are missing a key point in that section.... the discipline/action is ONLY in the context of a REGULATORY BOARD, not a business itself. You can't lose your cosmetology license but you can be fired by the salon. Let's hear from the lawyers on that one, it is my read only and may be wrong, but I don't think I am.

 

Dr. Bob

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Fire everyone that comes up positive for opiates, benzos or even nicotine using the same standard for MMJ.

But you just listed the problem. Opiates, benzos or even nicotine leave the system quickly.

Cannabis does not.

Until an accurate test is developed for current (hours) use, cannabis users are screwed under Michigan employment laws.

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No, you are missing a key point in that section.... the discipline/action is ONLY in the context of a REGULATORY BOARD, not a business itself. You can't lose your cosmetology license but you can be fired by the salon. Let's hear from the lawyers on that one, it is my read only and may be wrong, but I don't think I am.

 

Dr. Bob

 

My read is you are correct about this section:

 

including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau,

 

But the section leading to that is not just about licensing boards:

 

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege

 

Here it talks about arrest and other things not business related. It then goes on with the phrase "including but not limited to" which to me means the licensing board is just a portion of what was intended to be covered. I take the term "or denied any right or privilege" to include any right or privilege including that of employment. And the law all ready says it effects non gov entities like licensing boards so why wouldn't the privilege of employment be included?

 

Of course my opinion may not agree with the supreme court. After all they got the Citizens United case wrong. :rolleyes:

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My read is you are correct about this section:

 

including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau,

 

But the section leading to that is not just about licensing boards:

 

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege

 

Here it talks about arrest and other things not business related. It then goes on with the phrase "including but not limited to" which to me means the licensing board is just a portion of what was intended to be covered. I take the term "or denied any right or privilege" to include any right or privilege including that of employment. And the law all ready says it effects non gov entities like licensing boards so why wouldn't the privilege of employment be included?

 

Of course my opinion may not agree with the supreme court. After all they got the Citizens United case wrong. :rolleyes:

 

Ok, I think you would agree with my statement as follows- I feel the context of the entire paragraph is that it refers mainly to boards , but there IS some wiggle room to say it is broader. This wiggle room is up to judicial discretion more than the letter of the law. I don't think the courts would be faulted for limiting it to the boards, but could justify a broader interpretation.

 

Again, excellent point and a well considered reply.

 

Dr. Bob

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But you just listed the problem. Opiates, benzos or even nicotine leave the system quickly.

Cannabis does not.

Until an accurate test is developed for current (hours) use, cannabis users are screwed under Michigan employment laws.

 

Opiates don't leave that quickly. If you medicate with either (or benzos) at night they can be detected the next morning. The point I was making was to make them accept the consequences of their position, force them to apply it across the board and they will change their tune pretty quick. Like my daddy used to say, 'don't ask a question unless you want to hear the answer'... They want a drug free work place, let's make them have one. Let's not give them the choice to pick which drugs are bad and which they will accept. Then they will have to acknowledge they have to accept all prescribed or recommended medications or none...

 

Dr. Bob

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Opiates don't leave that quickly. If you medicate with either (or benzos) they can be detected. The point I was making was to make them accept the consequences of their position, force them to apply it across the board and they will change their tune pretty quick. Like my daddy used to say, 'don't ask a question unless you want to hear the answer'... They want a drug free work place, let's make them have one. Let's not give them the choice to pick which drugs are bad and which they will accept. Then they will have to acknowledge they have to accept all prescribed or recommended medications or none...

 

Dr. Bob

Great concept!

It would put them out of business.

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Ok, I think you would agree with my statement as follows- I feel the context of the entire paragraph is that it refers mainly to boards , but there IS some wiggle room to say it is broader. This wiggle room is up to judicial discretion more than the letter of the law. I don't think the courts would be faulted for limiting it to the boards, but could justify a broader interpretation.

 

Again, excellent point and a well considered reply.

 

Dr. Bob

 

I know the ACLU is arguing the broader interpretation. I just hope the Supreme Court agrees but I have my doubts they will with the way it is weighted.

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Opiates don't leave that quickly. If you medicate with either (or benzos) at night they can be detected the next morning. The point I was making was to make them accept the consequences of their position, force them to apply it across the board and they will change their tune pretty quick. Like my daddy used to say, 'don't ask a question unless you want to hear the answer'... They want a drug free work place, let's make them have one. Let's not give them the choice to pick which drugs are bad and which they will accept. Then they will have to acknowledge they have to accept all prescribed or recommended medications or none...

 

Dr. Bob

 

That is interesting. I wish there was a law or some other way to force them to treat marijuana and prescription drugs the same. I still think the Americans With Disabilities Act may apply. You just have to convince one jury that it is a reasonable accommodation to allow a person who is not under the influence to test positive and not have that effect their employment.

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Why doesn't subsection c.1 protect Walmart Joe?

 

http://legislature.mi.gov/doc.aspx?mcl-333-26428

 

 

I read the comments posted about this story on several on-line news sources and I am flabbergasted at the cold cruel ignorant things that people are saying about Joe C.,our law, and us patients who know the truth about cabbabis.

 

Sad sad sad..its all I can say about the lives of those little minded people who believe every thing they read and are told by the government. Don't bother to do any research while you're on-line trolling for the next personal story to pi$$ on or call some poor sick person names.

 

Here is an opportunity for right minded entrepreneurs to start up businesses that will employ MM patients and maybe ONLY MM patients who are still able to work.

 

And people want to work and can, especially those who smoke cannabis for their medicine.

 

Peace

 

We are ALL in this together

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I really hope the ACLU is successful going after chinamart. For Joe C. and all of us MM patients who know the truth about cannabis and what it has done for us.

 

Peace

 

We are ALL in this together

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  • 2 months later...

Ok, I think you would agree with my statement as follows- I feel the context of the entire paragraph is that it refers mainly to boards , but there IS some wiggle room to say it is broader. This wiggle room is up to judicial discretion more than the letter of the law. I don't think the courts would be faulted for limiting it to the boards, but could justify a broader interpretation.

 

Again, excellent point and a well considered reply.

 

Dr. Bob

 

 

I disagree. The law says, "c) If a patient or a patient's primary caregiver demonstrates the patient's medical purpose for using marihuana pursuant to this section, the patient and the patient's primary caregiver shall not be subject to the following for the patient's medical use of marihuana:

 

(1) disciplinary action by a business or occupational or professional licensing board or bureau;"

 

There is an "or" before the phrase about licensing boards. So disciplinary action by a business is not an interpreted protection, it is a stated protection written in the law. Disciplinary action by a business includes firing. I believe this is the argument the ACLU is using in their appeal.

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Guest CaveatLector

I disagree. The law says, "c) If a patient or a patient's primary caregiver demonstrates the patient's medical purpose for using marihuana pursuant to this section, the patient and the patient's primary caregiver shall not be subject to the following for the patient's medical use of marihuana:

 

(1) disciplinary action by a business or occupational or professional licensing board or bureau;"

 

There is an "or" before the phrase about licensing boards. So disciplinary action by a business is not an interpreted protection, it is a stated protection written in the law. Disciplinary action by a business includes firing. I believe this is the argument the ACLU is using in their appeal.

This discussion took place here months ago. Your interpretation neglects the fact that there is ALSO an "or" before occupational. Disciplinary action by an occupational makes no sense. However, regardless of that, interpreting based on proper grammar usage also leads to the same conclusion.

 

To the people arguing that it is a "privilege" to work, you are wrong. Privilege, in this context, is referring to a privilege as granted by the government. If I mow my neighbor's lawn because he is sick then that is a privilege to him based on webster's definition. I continue to mow it all summer. Then I find out he uses mj so I stop mowing. Your argument would suggest I somehow cannot do that.

 

A private employer can fire you if you smoke tobacco if their policy is no tobacco use. There was a case like that in Michigan maybe 10 years ago where some manufacturing employer required that none of its employees smoke cigs.

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This discussion took place here months ago. Your interpretation neglects the fact that there is ALSO an "or" before occupational. Disciplinary action by an occupational makes no sense. However, regardless of that, interpreting based on proper grammar usage also leads to the same conclusion.

 

To the people arguing that it is a "privilege" to work, you are wrong. Privilege, in this context, is referring to a privilege as granted by the government. If I mow my neighbor's lawn because he is sick then that is a privilege to him based on webster's definition. I continue to mow it all summer. Then I find out he uses mj so I stop mowing. Your argument would suggest I somehow cannot do that.

 

A private employer can fire you if you smoke tobacco if their policy is no tobacco use. There was a case like that in Michigan maybe 10 years ago where some manufacturing employer required that none of its employees smoke cigs.

 

You are correct with your interpretation of the "or". The passage ONLY refers to some sort of business/occupational/licensing regulatory agency, not an individual business. You can't lose your cosmetology LICENSE but clearly you can be fired by the salon. Furthermore, the specific language talks about 'impairment' at work. The clearest analogy I can think of to this case is the matter of child custody. If you don't have a card and can be shown to be using an illegal drug (marijuana) that simple fact can be used against you in a custody case. If, on the other hand, you do have a card, the burden of proof is on the party opposing your custody to show your medical use is actually putting the child at risk- you are allowing the child and their friends to wander through your grow room, or you are so impaired by the medication you can no longer care for the child (with examples of times it occurred in your specific case). They would have to show the child was consistently late to school, you were driving while impaired (and convicted of it) while the child was in the car, etc.

 

In my non-legal opinion, I think the matter of Joe should have revolved around the fact he worked for a Michigan Walmart store (to keep it in Michigan rather than federal court) and that a Michigan branch of an interstate corporation must abide by local law in Michigan- which clearly allows the medical use of marijuana so long as there is no impairment at work rather than some concept of a 'drug free workplace' under federal law. The second point of this same argument is whether Joe was actually impaired at work (Walmart justified the firing based on 'workplace safety' and 'drug free workplace' policies) and how the local Michigan Walmart demonstrated the impairment.

 

The biggest problem with suing a company or police agency etc for violation of civil rights when it comes to medical marijuana is that it goes to federal court, there is no federal protection for medical marijuana, and the federal courts are very unsympathetic to activity that is clearly illegal from their standpoint. Not trying to discourage folks from asserting their rights under the act, but just advising that if you do push it in Federal Court, make sure your ducks are in a row. It would really help if there were other, non marijuana related, points that you could bring to bear in your case of violations of your civil rights. Examples of the later would be violations of due process or discrimination.

 

Dr. Bob

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