In a recent legal brief filed before Michigan’s Unemployment Insurance Appeal Commission, state Attorney General, Dana Nessel argues that residents fired from their jobs for cannabis use outside the workplace are still eligible by law for unemployment benefits. Nessel and Solicitor General Fadwa A. Hammoud filed the brief with the commission on Monday, August 9, over three cases in which ex-employees are facing the possible loss of unemployment benefits after being fired solely for cannabis use during their personal time. In a statement, the attorney general said, “Marijuana was not used on the job or on the employers’ premises, nor did it impair the employee during work hours.”

She continued, “The people spoke loud and clear when they voted in 2018 to legalize marijuana once and for all.” She concluded, “Nobody over 21 can be penalized or denied any right or privilege solely for legally using marijuana, and employers cannot control their employees’ private lives by calling the legal use of marijuana outside of work hours ‘misconduct’.” Two out of the three cases stem from employer appeals of rulings that found workers were not disqualified for benefits of their off-hours cannabis use. 

The third is a worker’s appeal of a ruling that they were ineligible for benefits under a provision involving illegal substances. The brief states “Employers cannot use a code of acceptable conduct to avoid paying unemployment benefits to workers who, on their own time, engage in legal behavior the employer simply does not like.” Meaning, employees who like to grab some cannabis and rolling papers in their free time shouldn’t have to live in fear of losing unemployment benefits. 

It adds that employers, “Still generally retain their ability to hire and fire at will, but Michigan employees need not question whether their legal, off-duty conduct will leave them without unemployment benefits should an employer exercise that ability.” Michiganders are also ineligible for unemployment under state law if they lose their job due to a positive drug test. The attorney general’s office doesn’t dispute that point in its brief but instead argues that cannabis testing doesn’t actually qualify as a “drug test,” because the law defines that term as a test designed to determine the “illegal use” of a drug–and voters decided that cannabis use is not illegal. 

Under current state laws, because off-hours private marijuana use is neither misconduct connected with an employee’s work nor a drug test under the strict meaning of the law, according to the brief, employees fired over that conduct shouldn’t be disqualified from unemployment.