What Should Michigan Employers do now That Recreational Marijuana Is Legal?

Recreational marijuana is now legal in Michigan and there are already several dispensaries (mostly in Ann Arbor) selling the product. So, what should employers now be doing? Reviewing and revising their drug testing policy!

The Michigan Regulation and Taxation of Marihuana Act, MCL 333.27951, et seq., specifically provides, in relevant part, the following:

This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer's property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marihuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an 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 marihuana.

MCL 333.27954 (3)(emphasis added). As you may know, current testing methods only demonstrate that marijuana is in a person’s system, but they cannot determine whether someone is “under the influence” at the time of the test. Therefore, it is essential for employers to have a policy that prohibits the use of illegal substances, including marijuana which remains unlawful under federal law, and provides for testing. 

Without such a policy, employers will have to prove that the employee was under the influence while at work (i.e., blood shot eyes, smelling like marijuana, slurred speech, munchies…). This is often difficult to do.

Federal contractors are required to maintain a drug free workplace, including prohibiting the use of marijuana. But, more importantly, this is a safety and productivity issue for all employers.

I am recommending to most of my clients that they continue to test employees and terminate any employee who tests positive for so long as marijuana remains unlawful under federal law and/or until testing methods improve. Employers who do not have a drug testing policy should adopt one as soon as practicable. These policies should be written by an experienced employment attorney.

In addition, out of fairness to employees, employers who have a policy should alert them that nothing has changed. Testing positive for marijuana, even if smoked or ingested outside of work during non-working hours, will result in the termination of employment.

You don’t want to a good employee to fail a drug test, thinking this is now acceptable, if it’s not according to your company’s policies. 

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