Michigan voted to legalize the use of recreational marijuana. Now what?

On Nov. 6, 2018, Michigan residents voted to legalize marijuana for adult recreational use, making this the first state in the Midwest to do so. The new law allows individuals age 21 and older to purchase, possess and use marijuana and marijuana-infused edibles. The initiative specifies that adults can grow up to 12 marijuana plants (keeping a maximum of 10 ounces) for their own consumption.

Although the referendum calls for the law to take effect 10 days after election results are certified, in early December, marijuana is not expected to be available commercially for quite some time, as the state puts regulations and licensing in place and local municipalities decide whether to allow such businesses in their communities. Police agencies around Michigan must also consider how law enforcement procedures will change with the new law. A number of Michigan universities are also releasing policy statements regarding marijuana use on campus.

How does the law affect the workplace? Employees can still be fired (or not hired) for a positive drug test. Employers may continue to perform pre-employment and random drug tests on employees and maintain zero-tolerance policies. This new referendum will not protect job applicants or employees who test positive for marijuana use.

Individual Michigan employers must consider whether to maintain zero-tolerance drug policies or create alternate guidelines. Now more than ever, it’s important to make sure pre-employment drug-testing policies and employee handbooks reflect the times. A policy needs to be in place making it crystal clear that employees are prohibited from being impaired by marijuana while on the job, legal or not.

We recommend that employers focus on prohibiting employees from being impaired due to alcohol/marijuana use while working instead of focusing on marijuana use in and of itself. By focusing on impairment instead of use, employers will minimize the likelihood of conflicting with state “lawful use” laws.

Employers with federal contracts or for those with employees licensed through federal agencies, there is no gray area. Marijuana is an illegal substance under federal law and, thus, a zero-tolerance drug policy will apply. For employers facing significant safety and health risks, drug testing is imperative.

Employers not facing significant safety and health risks from impaired employees may decide drug testing risks outweigh potential benefits. In states where recreational marijuana is already legal, a growing number of companies are asking the lab to test for all drugs except marijuana. For example, in Nevada, where marijuana was legalized in 2017, the number of companies asking that marijuana be included in workplace drug testing dropped from 95 percent in 2016 to 91 percent in 2017.

Do you need help considering the marijuana issue in your workplace policies? The specialists at BCN Services are happy to help you craft or revise a policy. Contact us for assistance.

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Thom Moore, Partnership Manager