High Times in the Mitten State

By Masud Labor Law Group

November 9, 2018

On November 6, Michigan voters approved Proposal 1, a ballot initiative providing for the legalization of recreational marijuana.  Legalization is expected to take effect sometime in December 2018, giving employers less than two-months to sort out how the legal use of marijuana will affect their workplace policies and procedures.  Unfortunately, at least in the short term, the approval of Proposal 1 is likely to create more questions than answers.

Supporters of Proposal 1 contend that it expressly addresses employers’ concerns about the legalization of marijuana and allows employers to maintain workplace drug policies that restrict marijuana use.  They note that under Proposal 1:

• Employers are not required to permit or accommodate marijuana use or possession in the workplace;
• Employers can discipline employees for violating a workplace drug policy or working while under the influence of marijuana; and
• Employers can refuse to hire, discharge, or discipline applicants or employees because of their violation of a workplace drug policy or for working under the influence of marijuana.

At first glance, it would seem that Proposal 1 does make it easy for an employer to maintain a drug free workplace, even with recreational marijuana now being legal.  But things could be a bit more complicated than they seem, and employers will need to take extra care to make sure they are not inadvertently violating Michigan law.

For instance, employers could have a hard time proving that an employee is in fact under the influence of marijuana.  This is because unlike the case with alcohol, there is no reliable test available to show whether someone is high on marijuana.  In fact, according to the Michigan Supreme Court, just because marijuana is found in an individual’s system does not mean that the individual is actually under the influence of marijuana.  Thus, simply producing a positive drug screen may not be enough to “prove” an employee was under the influence.

Proposal 1’s recent approval could also lead to complicated and unexpected legal questions.  For instance, Michigan’s Persons with Disabilities Civil Rights Act (the “PWDCRA”) states that an employer can establish policies and procedures concerning alcohol and illegal drugs yet also states employers cannot give employees physical exams unless they are directly related to a job’s requirements.  Taking these provisions together, the PWDCRA appears to expressly allow an employer to test for the presence of illegal drugs.  With recreational marijuana use now being legal, does this mean that an employer can only test for marijuana if it can show a direct relation to a job’s requirements (DOT testing, reasonable suspicion, etc.)?  Only time will tell, as this is but one of the legal issues which will likely be tested in court.

Until these legal issues are resolved, concerned employers may choose to take a conservative approach.  For example, employers might modify their drug testing policies such that marijuana usage is not automatically tested.  Instead, testing for marijuana would be required where the test can be shown to be “directly related” to the workplace.  Such a direct relationship would seem clear where testing for marijuana is required by applicable law or where an employer possesses credible evidence an employee was under the influence of marijuana while working.

If you have questions how the approval of Proposal 1 may affect your workplace, or need assistance reviewing your options with respect to how to respond to it, please contact Masud Labor Law Group.