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BT Currents - Hot Topics in Employment Law

Michigan Employer Action Steps for Recreational Marijuana

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Recreational marijuana is legal in Michigan as of December 6, 2018, which means that clear communication and managing employee expectations is critical right now. Those employers who have attended our programming on this issue or contacted us in the ramp up to this change have taken three action steps:

  1. Decide whether to modify existing workplace drug polices to accommodate marijuana.When medical marijuana was legalized, most employers continued their policy to disqualify an employee from work for a confirmed positive marijuana test result, and most will continue to do so for legalized recreational marijuana. This decision is driven by the desire to best assure employee safety and the integrity of operations – especially because no test exists to determine whether an individual is under the influence of marijuana as there is with alcohol. The ballot initiative expressly recognizes the right of an employer to discipline an employee for “violation of a workplace drug policy” – a solid statement of intent. Also, marijuana remains illegal under federal law.
  2. Clarify your existing drug policy statement to expressly confirm that neither the recreational nor the medical use of marijuana on or off duty will be accommodated. Such a clarification should also state that a confirmed positive marijuana drug test will establish use or “under the influence” and disqualify an employee from work.
  3. Issue an employee communication.  Employees are heading into the weekend with the understanding that the recreational use of marijuana is now legal. They need to have a clear understanding that recreational use of marijuana is not accommodated under workplace drug policies. It’s also a good time to remind employees to get help if they have a substance abuse problem, and provide referrals to employer supported resources.

Employers have a straightforward set of reasons to continue their current practices should they so choose, but need to engage the employee discussion.

Don Lawless

Don Lawless is a partner in Barnes & Thornburg’s Labor and Employment Law Department in Grand Rapids, Michigan, and serves as vice chair of the firm's Higher Education Practice Group. He has more than 25 years of experience working on behalf of employers to meet their labor and employment law objectives.

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