On Nov. 6, 2018, Michigan residents voted to legalize marijuana for adult recreational use, the first state in the Midwest to do so. What does this mean for employers? Generally, they have the right to maintain and enforce a zero-tolerance policy against drug and alcohol use. But that may change over time as courts weigh in on varying laws in state and federal jurisdictions.
The new law allows individuals age 21 and older to purchase, possess and use marijuana and marijuana-infused edibles. 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, marijuana is not expected to be available commercially for quite some time. The state puts regulations and licensing in place and local municipalities decide whether to allow such businesses in their communities.
Michigan police agencies must also consider how law enforcement procedures will change with the new law. A number of Michigan universities have also released policy statements regarding marijuana use on campus.
Weed in the workplace: What Michigan employers can do
In a recent blog posting, experts at the Varnum Law Firm state that ” The MRTMA does not restrict a private employer’s right to maintain and enforce a zero-tolerance drug and alcohol policy.”
In other words, 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.
But keep in mind that prospective employees may still file a discrimination claim if their employment offer is rescinded. In a Connecticut case, for example, a prospective employee using medical marijuana for PTSD treatment filed a discrimination case using the premise of a state law that prohibits employers from discriminating on that basis. The plaintiff won a summary judgment in that case.
Individual Michigan employers must consider whether to maintain zero-tolerance drug policies or create more tolerant guidelines. Now more than ever, it’s important to make sure pre-employment drug-testing policies and employee handbook 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.
Marijuana remains illegal under federal law
For employers with federal contracts or 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.
More information here: Listen to an interview on WDET with updates about the new law.
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. We can help with everything from developing policies and handbooks, to handling safety training, payroll and HR reporting. Contact BCN Services at 1-800-891-9911 or contact us electronically.
Photo Credit: Photo by Roberto Valdivia on Unsplash
Thom Moore, Partnership Manager