Many states have decriminalized marijuana, whether generally or when used for medical reasons. But such changes present challenges for companies and their employees when it comes to balancing workplace concerns and employee rights. The latest marijuana issue employers may need to consider is called “microdosing.”
Rebecca Greenfield in her article, “The Case for Eating Weed at Work, ” explains the recent microdosing trend :
With recreational marijuana now legal in eight states and the District of Columbia, users have gravitated to low-dose edibles, such as brownies and mints with THC content of fewer than 5 milligrams—low enough for a manageable high for first-time users …
Microdosing refers to regularly taking small amounts of drugs—generally, hard-to-get and illegal psychoactive ones, such as LSD or psychedelic mushrooms—throughout the day to boost creativity. Taken in such small quantities, the drugs don’t make users trip. Rather, people claim the drugs improve their concentration, problem-solving abilities, creativity, and productivity and reduce their anxiety.
Marijuana Use in the Michigan Workplace
Michigan is one state that has decriminalized marijuana for medical reasons. Specifically, under Michigan’s Michigan Medical Marijuana Act (MCL 333.26421) “a certified user may not be subjected to any “penalty of any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business.”
However, employees have not fared well under the statute. Consider for example in Casias v. Wal-Mart Stores, Inc. (2012) the employee was a certified medical marijuana user. He had sinus cancer and an inoperable brain tumor. He later failed a drug test and was fired.
The plaintiff then sued for wrongful discharge. He claimed that his marijuana use was not illegal under Michigan’s Medical Marijuana Act. The Sixth Circuit disagreed. It concluded that Michigan’s medical marijuana statute provided only a “defense to criminal charges or other adverse state action,” and that applying it to claims against private employers would be unduly broad.
Disciplining Employees for Marijuana Use
Legally, employers will continue to have significant leeway for punishing marijuana use in the workplace. Even if its use is permitted under state law, marijuana remains an illegal Schedule I drug under the federal Controlled Substances Act. And employees using the drug are not currently afforded protections under the Americans with Disabilities Act.
This means whether your state law permits recreational or medicinal marijuana use, you still generally have the right to test your employees for drug use and discipline them if their marijuana use violates your drug-free workplace policy. However, consult with your company’s employment attorney because there are nuances to employment-related drug testing. For instance, recent changes to OSHA’s drug testing and its enactment of an anti-retaliation rule alters the circumstances when drug testing can be conducted. This rule is intended to reemphasize the protections for employees to report injury and illnesses without fear of retaliation.
For instance, recent changes to OSHA’s drug testing and its enactment of an anti-retaliation rule alters the circumstances when drug testing can be conducted. This rule is intended to reemphasize the protections for employees to report injury and illnesses without fear of retaliation.
For more information about complying with federal and Michigan employment laws and your rights under those laws, contact employment attorney Jason Shinn. Since 2001, he’s worked with clients to address employment law matters, and litigating those issues in federal and Michigan courts.