“Smoke ’em if you got ’em.” Recreational marijuana is officially legal today in Michigan. However, there are a host of budding issues that employers and employees must address with this legalization.
For background, Michigan voted in November to legalize recreational use of marijuana by adults who are 21 or older. About ten years earlier, Michigan voters approved the legalization of marijuana for medical purposes.
To help cut through the haze of confusion surrounding Michigan’s law, here is a snapshot of certain issues relevant to companies and employees:
- How much pot? Individuals who are 21 or older can possess or transport up to 2.5 ounces of marijuana. They can also grow up to 12 plants if they are not in public view. They may also share 2.5 ounces with others, but not for payment.
- Can a Drug-Free Workplaces Harsh a Buzz? Yes. Michigan law does not override employers policy for maintaining a drug-free workplace. Employers can (and should) adopt and enforce workplace policies on marijuana; have policies that prohibit marijuana use or influence on the job by employees and applicants; they must continue to comply with state or federal laws restricting the use of marijuana, and comply with marijuana restrictions in federal contracts or grants.
- Must Employers Accommodate Medical Marijuana? Employers generally do not have to accommodate any use of marijuana in the workplace. But be careful. We covered a court opinion that went against an employer who failed to accommodate a medical marijuana user. See Refusing to Hire Medical Marijuana User Found to be Unlawful Employment Discrimination. However, this decision is not binding on Michigan courts. And case law applicable to Michigan employers has generally found no legal obligation to accommodate medical marijuana use.
- Legal but still Illegal. While Michigan legalized marijuana, it is still illegal under federal law. This was a major concern when President Trump’s former Attorney General Jeff Sessions reversed Department of Justice policy to make marijuana prosecutions priority (so much for state’s rights). However, with Sessions gone it is unclear what focus if any, federal authorities will place on marijuana prosecutions. Practically, you would hope law enforcement officials will not expend taxpayer resources in going after recreational, low-level users.
The main piece of advice we are giving our business clients is to decide whether the business can remain “drug-free.” If there are no legal, contractual, regulatory or other restrictions, then decide whether it will maintain a “zero-tolerance” policy or allow legal recreational use by employees and job candidates and under what circumstances. Practically speaking, we understand many businesses are finding it impossible to fill positions or retain employees with a zero-tolerance policy.
Next, look at your company’s policies and procedures. You will likely need to update or clarify them. Here are a few areas of consideration:
- Clearly identify your company’s policy when it comes to legal, recreational marijuana use, especially in its hiring procedures. Because marijuana may be detected for weeks after use, one thing you want to avoid is wasting time interviewing and conducting pre-employment drug screening on a candidate who has consumed marijuana in the last couple of weeks.
- Remind employees that even if legal recreational marijuana use is permitted, employees must ensure that their on-the-job performance is not are not impaired. This is especially true for jobs covered by DOT regulations or involving the operation of equipment. And clarify that employees in positions covered by state or federal drug restrictions must continue to comply with those restrictions.
- Clarify when and under what circumstances the company may drug test. Also, make it clear anyone using alcohol or illegal drugs while on the job will be immediately disciplined up to and including termination.
- Educate managers and supervisors about their responsibilities for maintaining a safe and productive work environment. This education should include procedures for identifying and reporting concerns about drug use and impairment.
- Consistently apply your recreational marijuana policy. Otherwise, you may open your company up to an unlawful discrimination claim.
If you are a company that needs advice for how the legalization of marijuana affects your workplace, contact Michigan employment attorney Jason Shinn. Since 2001, he has represented clients, both individuals, and companies, in addressing federal and Michigan employment law issues, including issues involving medical marijuana and accommodations.