Written by Attorney Anne McClorey McLaughlin

In November of 2008, the voters of the state of Michigan joined the ranks of 12 other states in legalizing use of marijuana for medical purposes. Since the Michigan Medical Marihuana* Act (MMMA) took effect, the Michigan Department of Community Health (MDCH) has issued regulations for "qualifying patients" and their "primary care givers" to register and to obtain an ID card to permit legal use of medical marijuana.

In order to obtain an ID card, the patient must obtain certification from a physician that the patient suffers from a debilitating medical condition and would receive therapeutic or palliative benefit from the medical use of marijuana for treatment of the condition or its symptoms. The debilitating medical conditions listed in the act for which medical marijuana use is permitted are cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immunodeficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS, or Lou Gehrig’s Disease), Crohn’s disease, agitation of Alzheimer’s disease and nail patella. Any medical condition that causes wasting syndrome, severe and chronic pain, severe nausea, seizures, severe and persistent muscle spasms, and symptoms of multiple sclerosis also qualifies.

MDCH has received over 47,000 original and renewal applications for registry ID cards since it began accepting applications in April 2009. As of July 30, 2010, it has issued 23,350 patient registrations and more than 6,400 care giver registrations, and denied 6,122 applications. The Department is currently dealing with a nearly four-month backlog of applications.

A qualifying patient or primary care giver who obtains a registry identification card may possess up to 2.5 oz. of usable marijuana, 12 marijuana plants and an incidental amount of seeds, stalks and unusable roots. Any plants must be kept in an enclosed, locked facility to which only the registered patient and/or care giver have access. A care giver may cultivate and provide the marijuana to the patient. However, use, possession, sale and delivery of marijuana is otherwise illegal in Michigan and under federal law, so patients and care givers may not provide marijuana to anyone else, nor acquire it from any other source.

In addition to protection from arrest and criminal prosecution, registered patients may not be denied any right or privilege for use of medical marijuana, or for care givers, assisting a patient with use of marijuana. The law prohibits any board or bureau that licenses businesses, occupations or professions from imposing any penalty or disciplinary action on a regulated business or member of an occupation or profession who legally uses medical marijuana.

Other persons entitled to protections under the act include physicians who prescribe medical marijuana, persons who provide marijuana paraphernalia to care givers or patients, or who assist a patient with administering or using marijuana. Also, a person may not be arrested, prosecuted or subject to any type of penalty solely for being in the vicinity or presence of the medical use of marijuana. Michigan nonresidents who have marijuana registration identification cards from other states may use and administer medical marijuana in Michigan and have the same protections as residents.

A care giver may be compensated for assisting a registered patient with medical marijuana, but the law does not require any government medical program (Medicare, Medicaid) or any health insurer to cover costs associated with medical use of marijuana. It is unclear, though, whether workers’ compensation or no-fault insurance would cover the costs of medical marijuana for debilitating medical conditions caused by work-related injuries or injuries suffered in a motor vehicle accident. Both coverages afford reimbursement for medical expenses "reasonably necessary" for the care, recovery or rehabilitation of an injured person.

The MMMA does place limits on the use of medical marijuana. A person may not operate a motor vehicle, aircraft or motorboat while under the influence of marijuana. The law also forbids performing tasks while under the influence of marijuana when doing so would be negligent or constitute professional malpractice.

A person may not possess or use marijuana in a school bus, on the grounds of any K-12 school or in a correctional facility. Patients may not smoke medical marijuana on any form of public transportation or in any public place. The law also expressly forbids marijuana use if the person does not have a serious or debilitating medical condition.

Employers face a dilemma because of state and federal laws requiring accommodation of medical or physical conditions in the workplace. However, the act does not require employers to accommodate the use of marijuana in the workplace or any employee working under the influence of marijuana. Employers may take disciplinary action against employees for violation of workplace drug policies, including medical marijuana.

The law is now being tested in various courts around the state, in both civil and criminal proceedings. Over time, litigation will shape the scope and limits on use of medical marijuana in Michigan.

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