Category Archives: Discrimination Laws

Medical Marijuana Rights Are Protected By The First Amendment

In October 2003, the Unites States Supreme Court let stand a ruling by the Ninth Circuit Court of Appeals permitting physicians to recommend marijuana to patients whom they believe might medically benefit from its use.  Conant v. Walters, 309 F.3d 629 (2002).  Thus ended the seven-year dispute between the federal government and physicians and patients over the freedom to discuss medical marijuana use.
This decision is in concordance with a lower court’s rulings which, since 1997, has upheld the right of physicians (and patients) to speak openly and candidly about marijuana’s potential risks and its therapeutic benefits, and have made clear that physicians may recommend medical marijuana to patients free from federal threats or interference.

The government is not supposed to tell us what to think, which is why the government cannot place restrictions on speech keyed to the viewpoint expressed by the speaker. In a marketplace of ideas, such restrictions are the equivalent of price controls. The government isn’t supposed to set the value attached to ideas, though; that’s our job, and under the First Amendment, our right.

The government has the authority to not allow doctor’s to prescribe marijuana for medicinal purposes because it is still an  illegal drug under Federal law, even for medicinal purposes.
So, why is it OK to sign a form that Patient’s are likely to benefit from the medicinal use of marijuana? A regulation on this is not allowed because it would be a viewpoint-based restriction because it punishes only doctors who recommend medical marijuana – that is, who tell patients marijuana might be good for them. It would not punish doctors who disparage marijuana as a course of treatment.

Courts have long recognized the importance of the doctor-patient relationship. While the government protects our health by regulating available courses of treatment, courts have traditionally refused to interfere in what doctors and patients say to one another, and will not assume, when reviewing such regulations, that doctors will give medically unsound advice or that patients need to be protected from what a medical professional views as the truth.

 

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Filed under Discrimination Laws, Free Speech, Marijuana, Medical Marijuana

The Bong-Fog Surrounding Medical Marijuana and Employment

Many federal, state and local laws concerning the legal use of marijuana are in direct opposition to one another.  Caughtmedical marijuana in the middle are people needing relief from pain and well-meaning employers who want to do the right thing.  A central issue has been whether workers’ comp should cover the cost of medically prescribed marijuana in the 14 states that have legalized it, plus the District of Columbia.  Another issue is whether employees can have any traces of marijuana in their system when at work.

Some of the questions both Human Resource Directors and employees who legally use marijuana have are:
  • Are medical marijuana users exempt from my anti-drug policies?
  • Can I fire or refuse to hire an employee for using medical marijuana?
  • Would I be breaching federal contracts if I don’t enforce a no-drug policy?
  • How will medical marijuana use impact an employer’s mandatory drug testing?
  • Should an employee even inform an employer of their legal marijuana use?

In 2003, the U.S. Supreme Court ruled that employers can refuse to accept medical marijuana as a reasonable explanation of a positive drug test. In 2005, the Court ruled that the federal government may enforce the Controlled Substances Act’s prohibition on marijuana use for medical purposes, even on those who use the drug under state laws.

Because Federal Law still categorizes marijuana illegal for any purpose, the American’s With Disabilities Act – which is a federal statute – provides no protection.  Alternatively, the Michigan Medical Marihuana Act says a person “shall not be subject to disciplinary action by a business or occupational or professional licensing board of bureau” for using marijuana in accordance with the act. But, it also says the law doesn’t require an employer to accommodate the ingestion of the drugs in the workplace or an employee working while under the influence.

Many argue the real question is:  does an employer in the state of Michigan have a requirement to permit an employee to use medical marijuana outside the workplace and then come into the workplace with some levels of marijuana in their system?  Utilizing the bright-lined rule for the Michigan Marijuana Act the answer is YES, employers must permit this scenario not only because they are not allowed to take a disciplinary action against a person legally medicating; but, also because the affect of not permitting it would only allow Patients who are unemployed to use regularly to alleviate their medical condition or symptom.

This is NOT the intent of the law.  The intent is that Patients are able to use marijuana to treat their medical condition without fear of any sanction.

That being said, the law doesn’t require an employer to accommodate the ingestion of the drug in the workplace or an employee working while under the influence.  So, what is under the influence?  There is no legal standard for measuring marijuana impairment and the issue can become murky, said Melanie Brim, director of the Bureau of Health Professions within the Michigan Department of Community Health.

For more answers to frequently asked medical marijuana questions click here

Do you think employers should be able to fire employees for havIing any traces of marijuana in their system?

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Filed under Discrimination Laws, Employee Rights, Marijuana, Medical Marijuana

Jury To Decide Damages for Firing Woman Who Refused to Wear the “Marks of the Beast”…

This one is pretty out there… but apparently a NY federal court has found in favor of a female employee of the city, in a religious descrimination suit.  The woman claims she was fired from her job at a a public school because she objected to wearing an ID badge because it contained the “marks of the beast”.  The woman sued for $7.7 million… a jury will determine a damage award in the case soon.  Read a full version here

But really, if you or anyone you know is facing harassment or discrimination at work, it is probably worth your time to discuss the issue with an attorney.  Initial consultations are free of charge.

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Battle of the Sexes… Money!: Paycheck Fairness Act (PFA)

Over the years the equal treatment of men and women in the workplace has been a huge topic of debate. Women have fought for equal pay for equal work but in many cases, they have just come up short. However, now that midterm elections are creeping up on us, this debate is becoming a larger issue.

After it passed the house last year, the U.S. senate has been booming with talk about the Paycheck Fairness Act (PFA). This bill will allow, along with many other things, it to be easier for women who allege discrimination to file class actions against their employers. Also, it would remove any caps that were on punitive damages under the Equal Pay Act. Right now, the debate is very much political with the Democrats being for the Act and republicans against it.

There are many statistics that prove that women, in most professions and careers do, on average, make less than men do. If this act is put into place, this would no longer be such a large issue and women would finally get the protection that they have been fighting for, for so many years. However, on the negative side, many lawyers and businesses are against the act stating that it would open the door to many law suits and demands for women in their field.

If you have a question about your employment please call Bill Godfrey at (248) 624-5500 or email him at Bill@ambroselawgroup.com

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Fired For No Good Reason?

A little while back I wrote about a waitress getting fired because Hooters decided she was too heavy to work there… part of that discussion involved a mention of “at-will” as opposed to “just cause”  employment. Here is a VERY short primer as to what these terms mean, and how the laws apply to your everyday work environment.

To start with, and in the bluntest of terms, Michigan recognizes “at-will”employment, which means that you can be fired at any time, for any reason, and even for no reason at all.  Wow. Talk about no job security, right? It’s a pretty scary situation, but it is the reality for more types of employment than many people realize.  But the simple rule is just that… employment at the will (or even whim) of the employer…

Of course, this doesn’t make it alright to violate an employee’s civil rights… so no termination or harassment due to age, weight, gender, marital status or other discrimination.  Yes, in Michigan, weight is included as a protected class.

There is, of course, another status level for employees, called “just cause” employee. Essentially, this means that you can only be terminated for a good reason, like not doing your job well, violating company policies, and so forth.

However, if an employee, who would normally be considered “at-will”, can show that she reasonably believed that the company or employer had a “just cause” termination policy, then the employee may be able to argue for “just cause” employment status with a court, and potentially win a wrongful termination lawsuit.   This is true whether the employee’s belief is based on an express agreement, oral or written, or is the result of an employee’s legitimate expectations grounded in an employer’s policy statements. An employee’s legitimate expectations may be based on an employer’s written policy statements or statements contained in an employee manual. Sounds like a good reason to actually read that employee manual now, doesn’t it?

If you have any questions about this or other employment or discrimination based legal questions, do not hesitate to contact

Ambrose Law Group

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Discrimination? Overweight Woman Charged Extra to Have Nails Done by Salon

What makes an action discriminatory? In a recent online article posted by ABC News, a woman who was charged more to get her nails done because she was overweight plans to picket the salon and claims that she was humiliated and discriminated against due to her size.  The question then is, is this discrimination? Is there a legal remedy for this woman’s humiliation after being singled out for extra payment due to being overweight?

To begin with, let’s be clear, I absolutely feel for this woman and her situation, but we are not talking about sympathy here, we are talking about legal action.  Don’t forget that it is not against the law for someone to be rude, or even an ***hole.  But in a situation like this, where a person is refused or overcharged for a service by a business, what can they do to make it stop?  This particular example actually occurred in Georgia, but let’s pretend like it happened here in Michigan…

In Michigan, discrimination is governed by the Elliot Larsen Civil Rights Act. Unlike many states, Michigan has seen fit (pun intended) to prohibit discrimination based upon weight in many situations including seeking employment or being discharged from employment, or seeking housing.  The statute also declares that it is a civil right to be free from discrimination based upon your weight, including access to what are called “public accommodations”. A public accommodation includes a business which is open to the public and licensed by the state.  So, at first blush one would assume that in Michigan a person refused service or singled out due to their weight could sue and recover damages for weight discrimination.

However, the issue isn’t quite so clear. The section of the statute which outlines the prohibited actions of businesses states that a place of public accommodation (a business) cannot “deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.”

Notice that weight is missing from the list?  So here you have a grey area of the law. Protection against weight discrimination is expressly listed in the statute as a civil right, but in the specific section applying to businesses, weight is nowhere to be found.  It very well could be that the Michigan Legislature was contemplating a situation like we have here in the question of the overcharge by the nail salon.

Is it reasonable to treat overweight people differently when they cause more risk to a business? In this case, the salon owner claimed that the chairs in the salon could only hold 200 pounds, hence a heavier customer caused great risk of breakage or damage to the $2500 chair, and also that doing the nails of a heavier woman took longer and cost the salon more to service.  Do you buy this argument?  Would it be ok then for restaurants to charge overweight people more to eat at a buffet because they know they will consume more food?  These issues aren’t always as clear as they seem at first.

Do you have any issues that raise similar questions as do employment or other forms of discrimination? We would love to discuss your issues with you. If so contact Ambrose Law Group at (248) 624-5500

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