1. Medical Marijuana: Unique Challenges for a Budding Industry

    Two very different approaches by Connecticut and Michigan to the same issue – can employers regulate the use of medical marijuana, a drug considered both legal and illegal? – is indicative of the broader challenges facing a budding industry and the patients it serves.

    Medical marijuana users in Michigan lost an important battle earlier this month when the state’s Supreme Court ruled that they are not protected by the Michigan Medical Marijuana Act (MMMA) against employer drug policies. From law firm Miller Canfield

    “Walmart fired Mr. Casias … under its drug use policy after Mr. Casias tested positive for marijuana after he was injured while at work. During the drug testing process, Mr. Casias admitted that he used marijuana for medical purposes after he qualified for and received a registry card under the MMMA. Mr. Casias used medical marijuana after work, not during work hours.”

    Mr. Casias sued for wrongful discharge, but the Court sided with Walmart, writes Michael Groebe (Foley & Lardner):

    “… based on its conclusion that the language in the MMMA did not regulate private employment and thus, did not provide a cause of action to the employee.” 

    The law is intended to protect medical marijuana patients against arrest and prosecution, the justices reasoned, not to allow users to skirt workplace policies against the use of what is still considered an illegal drug.

    It’s a very different situation in Connecticut, which will become the nation’s seventeenth state to allow medicinal pot on October 1 of this year. That state’s law is unique because it forbids workplace discrimination against users. Katherine Goetzl (from law firm Littler) explains: 

    “The Connecticut law specifically states that ‘[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.’ However, it also provides that employers may prohibit the use of intoxicating substances during work hours and may discipline employees for being under the influence of intoxicating substances during work hours.”

    By and large, legalization does not necessarily imply ease of access, production, or distribution, nor does it mean that state laws allowing the use of medical marijuana cannot and will not be challenged at the federal and local levels. Case(s) in point – and pun intended: 

    Court rules the ADA does not protect medical marijuana users:

    “Four severely disabled California residents who obtain medical marijuana from collectives brought a lawsuit against the City of Costa Mesa and the City of Lake Forest alleging discrimination arising from their attempts to close medical marijuana dispensing facilities within their boundaries.” (Kronick, Moskovitz, Tiedemann & Girard

    “Because marijuana use is not authorized by federal law, the cities said, it would not violate the ADA for them to close down the marijuana dispensaries. Two out of three judges [in the lawsuit] agreed with the cities.” (Constangy, Brooks & Smith

    “The court emphasized that the ADA specifically provides that an ‘individual with a disability’ does not include an individual who is currently engaging in illegal drug use. The court rejected the disabled individuals’ claims that their doctor-supervised use that is legal under California law should not be considered illegal drug use.” (Foley & Lardner

    Suppliers in Montana forbidden from making a profit:

    The Montana Supreme Court … ruling finds that the state law barring marijuana providers from making a profit does not violate their right, or users’ rights, to pursue employment. Writing for the Court, Justice Michael Wheat said, ‘Although individuals have a fundamental right to pursue employment, they do not have a fundamental right to pursue a particular employment or employment free of state regulation.’” (XpertHR

    Colorado dispensaries threatened by U.S. Attorney:

    “U.S. Attorney John Walsh issued letters this month to 10 medical marijuana centers throughout Colorado, ordering them to shut down or move because they are located within 1,000 feet of schools. The mailing marks the third round of threatening letters sent to Colorado medical marijuana centers this year; 23 letters were sent out in January, and another 25 were mailed in March. All of the businesses targeted in those mailings closed or relocated voluntarily.” (Lawyers.com

    Michigan city blocked from banning medical marijuana:

    “Can a local government ban medical marijuana as a violation of federal law?  According to the Court of Appeals, the answer is no.  In Beek v. City of Wyoming, the Court of Appeals held that Wyoming’s zoning ordinance was void to the extent that it penalized the manufacture and use of medical marijuana which is expressly permitted under the Michigan Medical Marijuana Act.” (Warner Norcross & Judd

    Los Angeles bans marijuana dispensaries within city limits:

    “After years of experimenting with regulations and ordinances, the Los Angeles City Council announced its harshest action yet in its struggle with the city’s medical marijuana industry, banning all dispensaries within city limits.” (Lawyers.com

    New Jersey allows patients to sign up for medical pot:

    More than two years after the passage of New Jersey’s Compassionate Use Medical Marijuana Act (“Act”), patients are now able to register and receive state-issued identification cards to obtain prescriptions for medical marijuana. Formal patient registrations began approximately two weeks ago, with the commencement of actual drug disbursements expected to occur this fall. (Duane Morris

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