Legal Recreational Marijuana Raises Sticky Issues for Employer Drug Policies

Marijuana_screening_at_work_in_MichiganIn Michigan, and in the increasing number of other states where recreational cannabis is legal, employers that have traditionally had strict or zero-tolerance policies regarding drug use are facing new practical and employment law realities. Putting aside the issue of employees being high or intoxicated while on the job – which almost all employers won’t tolerate – many companies are reevaluating the wisdom of excluding otherwise qualified candidates or firing productive employees for engaging in a legal activity on their own time.

Not only do companies limit the talent pool and potentially alienate their workforce with drug testing and use policies that treat legal marijuana the same as heroin, meth, and cocaine (just like federal law does), they also face legal uncertainty. Differing state laws and court decisions have created a patchwork of parameters regarding employee rights and employer limitations involving legal marijuana.

Additionally, companies that may be inclined to do away with drug testing for cannabis may get into trouble for doing so if they have federal contracts that require such testing and prohibit cannabis use by employees of federal contractors.

As such, employers in legal cannabis states must tread carefully and understand the legal and business landscape in which they operate in order to avoid employment disputes or the loss of valuable opportunities.

Michigan Employers Can Still Prohibit Employee Recreational Marijuana Use

While adult-use cannabis is now legal in Michigan, employers in the state can still maintain “zero tolerance” policies and conduct testing for marijuana as they did before legalization.

The Michigan Regulation and Taxation of Marihuana Act (MRTMA) does not:

  • Require an employer to permit or accommodate conduct otherwise allowed by the Act in any workplace or on the employer’s property.
  • Prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marijuana.
  • 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 marijuana.

Haze Still Hangs Over Medical Marijuana Use and Employment Law

In most other states with legal recreational pot, employers also retain their pre-legalization rights to adopt and enforce drug policies that include marijuana. But the issues become stickier when an employee’s use of medical marijuana, not recreational weed, is involved. An employee in one state who uses marijuana for legitimate medical reasons under that state’s laws may find that their rights differ from a similarly situated employee working in another state.

For example, a Michigan appellate court held in 2019 that the Michigan Medical Marihuana Act (MMMA) does not create affirmative rights that usurp an employer’s right to decide whether or not to hire or fire “at-will” employees. As such, Michigan workers who legally use medical marijuana can be rejected for employment or fired for violating an employer’s drug policy just as recreational users can.

The Colorado Supreme Court came to a similar conclusion in 2013 when it ruled that an employer could fire an employee for using medical marijuana. Contrast these decisions with rulings from other states which held that employers were prohibited from discriminating against medical marijuana users when making employment decisions:

  • A New Jersey appellate court ruled in 2019 that the state’s Law Against Discrimination protected medical marijuana patients so long as they were not intoxicated at work.
  • A U.S. district court in Connecticut ruled in favor of a registered medical marijuana patient and against an employer that rescinded a job offer after the candidate failed a drug test.

Concerned About Your Company’s Drug Policies? Speak With a Michigan Employment Law Attorney Today

The new reality of legalized marijuana is changing the employment landscape across the country. It is critical that your company reevaluate your existing drug testing and use policies regarding marijuana to ensure that they still make economic and legal sense.

If you have questions or concerns about employment issues involving marijuana use, the employment law attorneys at Kreis Enderle can provide you with sound, straightforward counsel to guide your decision-making.

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