Ingham County Judge Rules Mmma Patients Eligible For Unemployment Benefits‏

[+Malamute]

Artcle:

 

 

http://m.lsj.com/news/article?a=2013303060041&f=3896

 

 

Opinion:

 

 

http://www.scribd.com/doc/128952692/Collette-Opinion

[+Malamute]

MASON — Medical marijuana users who conform to the state's medical marijuana law can collect unemployment benefits, an Ingham County judge has ruled.

In a decision issued Tuesday, Circuit Judge William Collette overturned a state commission that found a state-approved medical marijuana user, who was fired from her job after testing positive for marijuana, was not eligible for unemployment benefits.

 

"Disqualification from unemployment benefits for use of medical marijuana in conformity with (state law)," Collette wrote, "would amount to an impermissible penalty" and be "contrary to law."

 

The case surrounds former Hayes Green Beach Memorial Hospital employee Jenine Kemp of Lansing, who was fired in 2011.

 

Kemp, whose duties included performing CT scans and starting IVs, suffers from Lupus and neuropathy, which according to court documents cause chronic pain.

 

In November 2010, court documents say, Kemp applied for a medical marijuana card.

Read the official court opinion below

 

She would ingest the marijuana in butter, oil and in food. She did that in the evenings after her shifts, which were 6:30 a.m. to 3 p.m.

 

In May 2011, after a hospital patient complained that Kemp didn't use gloves when starting an IV and said Kemp talked about her own marijuana use, the hospital asked Kemp to submit to a drug test, which she failed.

 

Even though the hospital found, court documents say, that Kemp "at no time showed signs of intoxication during working hours," she was fired in June 2011.

 

She filed for unemployment benefits, was initially denied, but then it was determined she was a valid medical marijuana user.

 

The hospital appealed, and last year the Michigan Compensation Appellate Commission found that the state's medical marijuana law does not offer employment protection to card holders.

 

Collette noted in his opinion that the state unemployment insurance agency's own policy says that a valid medical marijuana user who is fired for a positive drug test should not be disqualified from unemployment benefits unless that person is under the influence at work or uses marijuana at work.

 

Kemp, he said, "does not fall within any of these categories."

 

He added that her positive drug test "merely demonstrated what she had informed her employer of prior to the test -- that she uses medical marijuana."

Hospital spokeswoman, Darice Darling, said they hadn't yet received Collette's decision and could not comment.

[+Malamute]

Obviously this isnt a "binding" decision,.... but is very very good and as it should be.

[ozzrokk]

Very good to hear...... As it should be....

[Dr. Bob]

This is an excellent decision for two reasons. First, it was fair to the worker. She apparently didn't violate the act and her employers were being 'difficult' and using the positive drug screen as an excuse to terminate her, thinking they would get off scott free for doing so. Second, this decision implies that there were be a price to pay for all these employers that are holding the card over their employees. They will have to pay an unemployment claim, as they should for terminating an employee for no other reason than they are a MMJ patient.

 

What will happen? Obviously this is a very limited decision (but one we may hear from again, especially if it goes to the CoA) and isn't binding. But it is a shot across the bow of every employer in Michigan. There is a potential cost for zero tolerance of medical marijuana, especially if the patient is using it in accordance with the act.

 

What should employers do? The obvious is that if a random drug screen is ordered at work, a positive test for thc should be viewed in context if the patient has a valid card. If that doesn't happen, perhaps legislating that any work related drug test only look for ACTIVE thc, indicating use at work, rather than carboxy, which could simply indicate self medication, possibly weeks earlier.

 

This result could mean nothing. Like some dispensaries, employers could wait until they are personally confronted with the situation, possibly up to and including their own day in court to settle the matter with their former employee. I would hope the smart ones will review their policy, acknowledge he reality that carboxy thc in your system does not equate with illegal drug use in Michigan. But I suspect if anything, this will just result in employers continuing on as they have after they run to their lawyers and spend good money trying to figure out how to cover their tails. They might switch or tweak their strategy, but the result will be the same, they will continue to randomly test, they will continue to inappropriately fire, and our labor pool will lose good workers because the law doesn't prevent them from being fired for their medical use of marijuana.

 

Dr. Bob

[GregS]

Great to know there are many others fighting the good fight and succeeding.

[mrd]

I too agree with the courts decision but not following sterile procedure in the use of ivs is a very real potential source of contamination. Also talking about medical mj in

your workplace might be a bit risky depending on where you work.

[+Malamute]

Yea. I would say noone disagrees she should of or could of been fired for doing stupid stuff. Just that benefits shouldnt be denied merely for the fact someone is a mmj patient.

 

:-)

[Dr. Bob]

Back before HIV we never used gloves. Started hundreds of IV's bare handed back then as a paramedic. The only issue was breaking universal precautions and running her mouth the the wrong person. I would have fired her myself for THAT. Maybe if she had been warned about unprofessional behavior before.

 

The point was not that she was fired, but that they used the MMJ use as a basis for the firing, and they got burned with an unemployment claim. Hopefully it will stick and encourage employers to fire people for real reasons rather than this drug screen, zero tolerance nonsense.

[bobandtorey]

Sorry about my posting I didn't see this one mods can delete it

[bobandtorey]

I remember Walmart Joe he lost his case his Lawyers were the ACLU and some how it got pushed up to the Fed's court house

[bobandtorey]

This is an excellent decision for two reasons. First, it was fair to the worker. She apparently didn't violate the act and her employers were being 'difficult' and using the positive drug screen as an excuse to terminate her, thinking they would get off scott free for doing so. Second, this decision implies that there were be a price to pay for all these employers that are holding the card over their employees. They will have to pay an unemployment claim, as they should for terminating an employee for no other reason than they are a MMJ patient.

 

What will happen? Obviously this is a very limited decision (but one we may hear from again, especially if it goes to the CoA) and isn't binding. But it is a shot across the bow of every employer in Michigan. There is a potential cost for zero tolerance of medical marijuana, especially if the patient is using it in accordance with the act.

 

What should employers do? The obvious is that if a random drug screen is ordered at work, a positive test for thc should be viewed in context if the patient has a valid card. If that doesn't happen, perhaps legislating that any work related drug test only look for ACTIVE thc, indicating use at work, rather than carboxy, which could simply indicate self medication, possibly weeks earlier.

 

This result could mean nothing. Like some dispensaries, employers could wait until they are personally confronted with the situation, possibly up to and including their own day in court to settle the matter with their former employee. I would hope the smart ones will review their policy, acknowledge he reality that carboxyl thc in your system does not equate with illegal drug use in Michigan. But I suspect if anything, this will just result in employers continuing on as they have after they run to their lawyers and spend good money trying to figure out how to cover their tails. They might switch or tweak their strategy, but the result will be the same, they will continue to randomly test, they will continue to inappropriately fire, and our labor pool will lose good workers because the law doesn't prevent them from being fired for their medical use of marijuana.

 

Dr. Bob

 

Great post Doc and I agree Michiganders can be fired for anything and now with the right to work Law it will be even easier to get canned

 

carboxyl part you may be wrong about I think it's the part that stays in you for 30 or so days so its not carboxyl thc but you are the Doc and no more then I so am not sure

 

 

 

[Dr. Bob]

It is my understanding that THC is the controlled substance and goes out of the body in 12 hours or so after use. The carboxy is the stuff than hangs around in the body fat for weeks and is NOT a controlled substance but does indicate past use. Employers should ONLY be testing for active TCH to demonstrate use on the job.

 

Dr. Bob