Marijuana in the workplace: Prop 1 has Michigan employers flummoxed

April 25, 2019: Sea change for Michigan marijuana comes amidst industry chaos
March 2, 2019: Whitmer kills Michigan marijuana licensing board in favor of new agency
Feb. 8, 2019: Meet the ex-drug cop who now regulates Michigan weed
Feb. 1, 2019: Legal marijuana didn’t end black market elsewhere. What can Michigan learn?
Update Dec. 4: You can smoke pot in Michigan but not buy it. What you need to know.
Nov. 9: You’ll never guess which Michigan counties loved weed (Kidding, you will)
Nov. 6: Michigan approves recreational marijuana. What you need to know.

The possibility that recreational pot will soon be legal in Michigan is giving businesses heartburn, while ensuring plenty of work for human resources managers and labor attorneys.

Some companies are concerned that a statewide ballot proposal to legalize recreational use for adults would jeopardize their ability to enforce drug-free policies. Others say it’s hard enough now to find skilled workers who can also pass a drug test, and legalizing marijuana would make that task even harder.

Proponents of Proposal 1, meanwhile, say they intentionally accounted for employer concerns when drafting the ballot language. The initiative states that passage wouldn’t prevent companies from choosing not to hire, disciplining or even firing someone who fails a drug test, violates a workplace policy or shows up high to work.

It’s almost certain that inevitable disputes over marijuana in the workplace will be tested in court. Recreational use of marijuana remains illegal under federal law, even as Michigan voters approved decriminalizing medical use a decade ago.

“It’s something employers are dealing with, whether Proposal 1 passes or not,” said Josh Hovey, a spokesman for the Coalition to Regulate Marijuana Like Alcohol, which backs the marijuana initiative on the Nov. 6 ballot and consulted the Michigan Chamber of Commerce and other business groups when drafting the language.

Bridge talked to the coalition backing Proposal 1, attorneys from Michigan and other states that specialize in employment and cannabis law, and employers to explore what may — and may not — happen should voters legalize marijuana in November.

“If it’s not already in your business, it’s going to be,” said Alex Leonowicz, an attorney with Howard & Howard Attorneys PLLC in Royal Oak.

What does the statute say about the rights of employers should voters adopt recreational use of marijuana in November?

Here’s what Proposal 1 says:

“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.”

So, that means Michigan businesses are free to restrict or ban pot use as they see fit, right?

Maybe. Several attorneys with expertise in employment and cannabis law told Bridge that the language as written would allow employers to continue to set — and enforce — their own drug policies.

But Wendy Block, of the Michigan Chamber of Commerce, said that language is too vague and leaves that ability open to interpretation. The chamber, she said, advocated for language that would have exempted private employers from its regulations.

The Michigan Chamber, in citing its opposition to Proposal 1, said the proposed law isn’t specific about whether employers can enforce their drug-free policies whether the employee is on the job or off the clock, how impairment is defined, or whether a company can withhold unemployment or workers’ compensation benefits for a positive drug test or workplace injury related to marijuana use.

“All of these things will be litigated,” said Block, the chamber’s vice president of business advocacy. “People will push the envelope on many of these questions, and the courts will have to decide, ‘Well, what did the proponents mean by this language?’ Similar to medical marijuana, there will be decades of litigation that follows this proposal.”

What’s the biggest issue for employers right now when it comes to legalization?

Resoundingly, attorneys said the main challenge for employers is that, unlike alcohol, there’s still no reliable test nor legal standard to determine impairment from marijuana.

This is posing a problem for more employers as the economy reaches near-full employment and companies struggle to find workers to fill open jobs.

“Legalization of recreational marijuana will make that problem even worse, because (businesses) have enough trouble right now finding people who can pass a drug test,” said Mike Johnston, vice president of government affairs for the Michigan Manufacturers Association.

“The safe thing and smart thing for manufacturers is to not hire somebody who doesn’t pass a drug test,” Johnston said. “The risks are too great for both the company and the employee.”

Data are mixed on whether legalization of recreational marijuana in other states contributed to increased use, according to the nonpartisan Citizens Research Council of Michigan, which analyzed the ballot initiative. The organization said, however, that economic principles would suggest that decriminalizing marijuana would lead more people to use it, though that effect is difficult to quantify.

Unlike alcohol, THC, the psychoactive component in marijuana, can remain in a person’s system for far longer than the high produced by the drug. That affects both the pre-employment drug screening that many employers require, and the ability to determine whether marijuana contributed to a workplace accident, said Jim Reidy, a labor and employment attorney at Sheehan Phinney Bass & Green PA in New Hampshire, who consults with the Society for Human Resource Management, a professional group, on workplace issues.

It’s “the new ‘don’t ask, don’t tell,’” Reidy said. “Employers are almost in an impossible position.”

A positive drug test after a workplace accident may — or may not — indicate the worker was under the influence of cannabis at the time, said Benjamin Sobczak, an attorney with Dickinson Wright PLLC in Troy.

“You can’t give that employee the benefit of the doubt, right, because you’ve got to be safe with your policies and what’s best for the company,” he said. “Tie goes to the employer in a no-tolerance policy, because the alternative is people could be under the influence and cause an accident and you didn’t run that test.

“If that test gets created for cannabis,” Sobczak added, “then I think now you really may have to take a harder look at this.”

What should employers do?

If legalized pot passes, employers should use the time between passage and when the law takes effect to review their policies and experiences from other states, said Michelle Lee Flores, a labor and employment lawyer with Akerman LLP in Los Angeles.

That includes: whether employers have federal contracts, since marijuana is still illegal at the federal level; the language in their employee handbooks regarding drugs; their policies and procedures if an employee tests positive for cannabis; guidelines for managers if they suspect an employee may be under the influence of marijuana; policies and procedures for random drug testing; and whether to allow edible marijuana products or oils — some of which do not contain THC — on company property.

“The most important thing for employers is to keep an eye on the changing laws and which laws apply to them,” Reidy said, especially organizations that have operations in more than one state and may have to comply with differing laws.

What do the courts say?

Decisions are mixed across the country. A federal case in Michigan, for instance, was brought against Walmart by a former employee from Battle Creek, who was fired after testing positive for marijuana. The employee had been diagnosed with cancer and had a medical marijuana registration card under Michigan law. Federal courts sided with the employer, ruling that the Michigan law does not restrict employers from disciplining employees for marijuana use.

A state court in Rhode Island, however, sided with a woman who was denied a paid internship because she was a medical marijuana patient and said she would fail a pre-employment drug test. This decision would not be binding on Michigan, but the  employee-friendly ruling demonstrates the different interpretations judges have taken when deciding marijuana lawsuits.

Those cases dealt with medical marijuana, which in Michigan requires a physician’s approval and a state registration card. Recreational use is currently illegal in Michigan, though attorneys and employers alike expect the courts to weigh in on cases brought under the recreational statute if voters approve it in November.

“The judiciary is meant to fill in the space between the words. That happens all the time,” Sobczak said. “In some way, these type of things being brought up to the court system is the way it’s supposed to be.”

I use marijuana on weekends or after work. I never show up high to my job. If adult recreational marijuana use becomes legal in Michigan, I don’t have to worry about being fired, right?

Wrong. If your employer has a zero-tolerance drug policy, you could still be fired if a drug test turns up positive, attorneys say, even without a reliable test to determine if a worker was impaired while on the job.

Leonowicz, with Howard & Howard, said employees should make sure they know and understand their current or prospective employer’s policies on drug and alcohol use, including how often and what type of drug screening is done.

Employers have a role in that, too, said Scott Dwyer, an employment law attorney with Mika Meyers PLC in Grand Rapids. Companies should be clear about their policies and drug testing requirements with current and potential employees, and about whether using marijuana off the clock could affect their employment.

“It’s good HR practices,” he said.