Michigan is now one of 10 states that permits recreational marijuana use. It is a big change and raises important questions for employers, including whether they need to adapt their company policies to align with the current law.
One of the most pressing, immediate questions is whether employers can maintain existing “zero-tolerance” drug policies, or if they are required to accommodate employees who use marijuana for recreational or medicinal purposes. In Michigan, the answer is clear—but perhaps only for the moment.
“The new law legalizing marijuana in Michigan does not supplant or override an employer’s policy to maintain a drug-free workplace – and does not prohibit an employer from disciplining or terminating an employee for violating its drug policy,” said James E. Baiers, chief legal officer Trion Solutions, Inc. “In fact, some businesses are required to maintain a drug-free workplace – such as those in transportation; operating heavy equipment and machinery; and, recipients of federal contracts or federal grants. It also is important to know that the new law does not require an employer to make any accommodations for medical marijuana.”
At present, the law generally leaves it up to employers to set their own policies regarding marijuana use by employees—but employers would be well advised to consider the possibility that this could change in the future.
The Michigan Regulation and Taxation of Marihuana Act (MRTMA) of 2018 was the ballot initiative which overturned the state’s longstanding ban on pot. In and of itself, the Act doesn’t inflict any additional constraints on employers’ rights to establish their own drug policies, stating that the Act “does not require an employer to permit or accommodate” marijuana use in the workplace or on work premises, nor “does it prohibit an employer from disciplining an employee for violation of a workplace drug policy.” Likewise, the act “does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against a person with respect to hire, tenure, terms, conditions or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marijuana.”
So, from an employer’s viewpoint: So far, so good. At present, maintaining a blanket prohibition on pot use does not pose an immediate regulatory or litigious risk for Michigan employers. As is often the case, however, additional factors are worthy of careful consideration when implementing or enforcing workplace policies about pot use. These include changing societal attitudes and potentially precedent-setting events taking place in other states.
Public opinion surrounding pot use, as evidenced by the victory of the MRTMA and the previous initiative legalizing medical marijuana at the ballot box, has clearly shifted substantially in favor of pro-legalization and pro-usage forces, with little indication of any impending reversal. For better or worse, legal pot usage by adults over 21 is now a fact of life in Michigan, albeit with restrictions. The law still prohibits driving under the influence, public consumption and possession or consumption on the grounds of schools and correctional facilities, for example.
The medical marijuana question is threatening to create a hazard for Michigan employers. While the law does not currently mandate that employers permit medicinal pot use, on or off the job, some courts in other states have recently ruled in favor of employees who sued employers for their right to use medical marijuana and maintain their jobs with reasonable accommodations. State courts in Connecticut and Massachusetts have interpreted their medical marijuana laws to prohibit adverse actions against employees who depend on medical marijuana, and employers in those states were required to make reasonable accommodations under state disability laws.
While these rulings are not of direct concern to employers in Michigan, another recent ruling may be. A federal judge in Arizona recently ruled against Walmart for firing an employee with a valid medical marijuana card, despite the fact that pot remains illegal at the federal level. If this decision stands on appeal and is accepted as precedent in other federal districts, Michigan employers may find themselves at similar risk should they discipline or terminate medical marijuana patients.
While Michigan law is currently clear regarding employers’ rights, the broader attitudinal and legal environment surrounding the marijuana question is becoming increasingly hazy. Trion Solutions will remain vigilant to emerging legal challenges and societal shifts, according to Baiers, and Michigan employers are wise to do the same.