Recreational Marijuana in Michigan: Now What?

In November of 2018, Michigan became the first Midwest state to pass legal recreational marijuana use. Adults 21 and older may grow up to 12 plants in their homes or locked in a secured outdoor location on their own property. As of this writing purchasing and selling marijuana for recreational use is still illegal due to federal law, but Michigan is expected to allow sales in 2019 for independent retailers.

Michigan employers, managers, and supervisors are in a haze about their responsibilities towards their employees when it comes to marijuana use. What should they do if an employee tests positive? Should they permit marijuana use on the clock? Or should company policy towards marijuana mimic drug and alcohol stipulations? Michigan is in the infancy of this new law, so only time will tell how companies will treat this new policy.

Drug testing employees

Michigan employers who drug test employees may wish to take a page out of the book of other states who have passed recreational marijuana laws. In states like Washington and California, a lot of drug testing companies no longer screen for marijuana in order to stay on the right side of state law. For drug screening companies who still screen for the now-legal substance, many companies and organizations ask their screening partners to not inform them if a candidate or current employee tests positive for cannabis.

On-site impairment, recognition, and policy

Despite legal recreational marijuana use, employees are not allowed to be impaired on the job. If a manager suspects an employee is impaired on the clock, typically, the employee is administered a test or sent to a testing facility to verify if they are under the influence.

The problem is marijuana and alcohol test differently. Tests for alcohol, like a breathalyzer, can determine if the suspected person is impaired currently and a danger to themselves or others. Marijuana tests can only validate if the suspected employee has cannabis in their system but it cannot differentiate if they’ve used marijuana on the job or a few days prior (like over the weekend). The difference for employers can be significant.

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Companies who believe an employee is impaired at work should have specific protocols to remove the employee if they are working under dangerous conditions, and try to determine whether or not they’re currently under the influence of alcohol, cannabis, or other drugs. If a company determines the employee is impaired by marijuana, they’ll want to work within their current substance abuse policies to decide if the employee should be disciplined or fired.

Accommodations and zero-tolerance policies

Despite all the kerfuffle about Michigan employees being allowed to show up to work high, employers are free to enforce zero-tolerance policies for recreational drug use on the job. Courts around the United States have consistently held that employees who pose a risk to themselves or others due to impairment may be terminated.

Medical marijuana use, however, is a bit trickier. Some courts have stated employees who use marijuana for medical use need accommodations. Utah law states, to put it simply, that medical marijuana users will qualify under the ADA. Doing so may require employers to work with the employee to schedule appropriate shifts, find low-risk work, or other solutions if the employee medicates on the job. Both employer and employee are advised to exercise caution when it comes to discussing the issue.

In other cases, employers are allowed to disqualify an employee even if their marijuana use is for medical purposes. Michigan employers should tread lightly into 2019 to avoid becoming a test case for the new legislation.

So what should Michigan employers do?

The best practice for Michigan employers is to keep current on legislation going into 2019. Questions about their rights and responsibilities will continue to change going into the new year as lawmakers update Michigan marijuana laws.

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