Seeing through the Smoke: Preparing Your Workplace for Legalized Marijuana

On November 6, 2018, Michigan became the tenth state in the nation and the first state in the Midwest to legalize the use of recreational marijuana. This approval has left employers across the state questioning what this means for their workplace.

The new law called the Michigan Regulation and Taxation of Marihuana Act (the “Act”), permits, among other things, possession and use of marijuana by individuals at least 21 years of age; but it also permits employers to maintain a drug-free workplace. Specifically, the Act provides employer-specific language that makes clear it does not prevent private employers from choosing not to hire, discipline, or even fire someone who fails a drug test, violates workplace policy, or shows up to work impaired due to marijuana use.

So nothing has changed? Pretty much, but there are still some practical considerations employers should keep in mind. 

Drug Testing

Unlike alcohol, THC can remain in a person’s system for far longer than the high produced by the drug, which affects drug testing in a big way because what someone does on Saturday will likely still show up in her system on Tuesday. This means if your company has a “zero tolerance” drug policy in place – which remains permissible – an employee who tests positive for THC can be terminated even if they were not impaired while at work. At the present time, objective testing for impairment from marijuana remains limited and problematic.  At least one state (Colorado) permitting recreational marijuana use has adopted a testing standard to address concerns over impaired driving, but Michigan to date has not. Reliance on “impairment” as a basis for action based on marijuana use accordingly can open a whole new controversy and debate.  At the same time, a zero-tolerance standard in a legalized-use environment can lead to wasted time and money as you try to weed out (no pun intended) unqualified applicants who test positive for use.  To reduce this problem, employers enforcing a drug-free workplace may want to consider including in job posts to potential applicants that the company is a drug-free workplace and conducts pre-employment drug testing, including for marijuana. This will provide notice to prospective employees and will allow (and hopefully encourage) marijuana users to screen themselves out of consideration for a position at the company – saving them and the company avoidable stress.

Enforcing a Drug-Free Workplace Policy

There are some employers who remain required to maintain a drug-free workplace. For instance, employers who are subject to the Drug-Free Workplace Act – employers that receive a federal contract over a certain dollar amount or receive a federal grant of any size – must enforce a drug-free workplace policy. Additionally, the Department of Transportation has drug testing rules that cover employers in the air, rail, trucking, and mass transit industries. Those rules require the testing of employees in safety-sensitive positions for alcohol and illegal drug use. It’s important to know if either of these laws applies to your company because they remain in force regardless of what Michigan’s state law says. Even if neither of these laws applies to your organization, however, you may continue to enforce a zero-tolerance drug policy.

Employees in Safety-Sensitive Positions

Drug testing for safety-sensitive positions should be common sense – no one wants the employee who is building a bridge over open waters to be doing so while impaired. Moreover, under federal law employees are entitled to a safe workplace and, therefore, employers must provide a workplace free of known health and safety hazards. This means employers are still responsible for enforcing their written safety program and acting in accordance with the Occupational Safety and Health Act (“OSHA”), as well as its Michigan counterpart – MIOSHA.

Workers Compensation

The impact of foregoing a zero-tolerance work environment on workers’ compensation premiums remains to be seen. What happens when a worker is injured on the job and wants to collect workers’ compensation despite evidence of marijuana use? What about an employee who sustains a work-related injury, and her physician prescribes medical marijuana for pain management? Can an employer rely on their workers’ compensation carrier to pay either of those claims? As noted earlier, THC can remain in a person’s system long after any high is gone, so a positive drug test doesn’t automatically prove that someone who just caused a work accident is currently impaired. What is clear is, however, is that marijuana remains illegal under federal law and so a carrier may have grounds to refuse to pay either claim.

Action Steps for Employers

Now is the time to review your company’s drug policy and determine if it needs clarification given the recent passage of the Marihuana Act. Whether you are an employer who enforces a drug-free workplace or not, you should have a drug policy in place that clearly articulates to employees that coming to work impaired, much like coming to work drunk, is strictly prohibited. Additionally, your company’s drug policy should minimally emphasize the following points: that you prohibit employees from using, possessing or being under the influence of marijuana while at work; the circumstances under which you will conduct drug testing; language about the abuse of prescription medications, which would also include medical marijuana; and the consequences of violating the policy. Most importantly, make sure your policy is consistently enforced.

The Marihuana Act takes effect 10 days after the election is certified by the state Board of Canvassers. If you or your company have additional questions about the Act and its potential effect on your workplace, please contact Marisa Griggs or another member of Rhoades McKee’s Employment Law Team.

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