COMMENTARY: The impact on employers of legalizing marijuana

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By Sarah L. Nirenberg

Michigan voters will likely have the opportunity to vote to legalize recreational use of marijuana on the statewide ballot in November 2018. If passed, the Michigan Regulation and Taxation of Marihuana Act would allow adults 21 years of age and older to possess up to 2.5 ounces (71 grams) of marijuana and grow up to 12 marijuana plants in their residence for recreational use. 

Michigan could become the 10th state, in addition to Washington, D.C., to legalize the recreational use of marijuana. Pressure for states to legalize marijuana for recreational use comes with popular support for the drug reaching new highs in 2017, with more than 64 percent of Americans favoring legalization. One poll in Michigan shows that 56.6 percent of 600 voters surveyed support the proposal while 36.7 percent oppose it. 

Even if the Michigan proposal to legalize marijuana passed, it would remain designated as a Schedule I substance and its possession criminalized under the federal Controlled Substances Act. 

Despite current laws prohibiting possession of marijuana, its use in Michigan has been steadily increasing since Michigan voters approved the use of medical marijuana in 2008. The number of people with medical marijuana cards has increased 76 percent since 2012 with “severe and chronic pain” being the most common reason for obtaining a card. In 2014-15, approximately 15 percent of Michiganders used marijuana at least once in the prior year, making Michigan the 13th highest ranking state for marijuana use. Legalization of recreational marijuana would make use more widespread. 

With a greater percentage of the population using marijuana and legalization of recreational marijuana on the horizon, employers are faced with genuine challenges to maintain productivity, ensure workplace safety, and adequately fill positions with quality employees while still protecting employees’ rights. 

 Employers who wish to maintain a drug free workplace will be able to continue to do so under the proposal. They will not have any obligation to accommodate the use of marijuana in the workplace or on their property. Furthermore, employers will not be prohibited from “disciplining an employee for violation of a workplace drug policy or for working while under the influence of mari[j]uana [or] 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 mari[j]uana.” 

A workplace drug policy can take many forms, including a zero tolerance policy. Employers who receive federal grants or are federal contractors are covered by the Drug Free Workplace Act, which requires them to maintain a drug free workplace, but does not require alcohol or drug testing. Even employers that are not required to comply with the Drug Free Workplace Act can take solace in the fact that marijuana is illegal under federal law, especially considering Attorney General Jeff Sessions’ January 4, 2018 memorandum to end the Obama Department of Justice’s guidance on the prosecution of marijuana possession cases – known as the Cole Memo – that had allowed medical and recreational use of marijuana to spread at an unprecedented rate.

Even though Michigan does not have any limits on private workplace drug testing, prudent employers should consistently apply a policy to avoid claims of disparate treatment toward protected groups. Employers who choose to have a drug policy prohibiting only the use of marijuana in the workplace and being under the influence of marijuana at work, may have difficulty proving that an employee’s impaired performance is because of marijuana. The cannabinoid most widely tested is carboxy THC, an inactive metabolite that only indicates prior marijuana use. Testing for THC, tetrahydrocannabinol, the psychoactive ingredient in marijuana is a better indicator of recent use, but that requires a blood test. However, THC is not the same as alcohol, as it is metabolized differently, meaning that the amount of time it stays in a person’s body is greatly influenced by factors such as gender, body fat percentage, frequency of use, method of ingestion and type of cannabis product consumed. Studies show that a heavy marijuana user could have even more than a 5-nanogram level of blood THC (the legal threshold in Colorado for driving under the influence of marijuana) for several days after last use. On the other hand, people who did not regularly use marijuana could ingest marijuana and have no evidence of it in their blood.

 Surveys show that employers in states where recreational use of marijuana is legal are gradually removing marijuana from pre-employment drug screening panels. Given the more widespread use of marijuana, combined with the fact that THC metabolites can remain in a person’s body for a month, pre-employment marijuana screens could result in a labor shortage in certain job classifications because a high percentage of candidates will fail the test. When determining whether to pre-screen for marijuana, employers should consider the nature of the job and whether it is dangerous, involves operating heavy machinery, or involves the safety or caretaking of others. 

Employers should also consider how their policy would affect an employee who returns from FMLA leave to a zero tolerance workplace and has lawfully used medical marijuana as part of treatment for a serious medical condition while on leave. If such an employee tests positive for marijuana and is discharged pursuant to a zero tolerance policy, the employer could face a claim that the termination was in retaliation for the employee’s use of FMLA. So long as marijuana is illegal under federal law, though, such a claim will probably not be successful. 

The increased use of marijuana and the inevitability of the legalization of marijuana give rise to new questions for employers. While the science for determining marijuana intoxication and employment case law strive to catch up, employers must decide what policies are best for their unique workplaces to mitigate risks from workplace accidents, performance issues, labor shortages, and employment lawsuits. 

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Sarah Nirenberg is an attorney at Kienbaum, Opperwall, Hardy, & Pelton in Birmingham. She specializes in a range of employment claims, including wrongful discharge, discrimination, harassment, retaliation, and wage and hour claims. She graduated cum laude from Washington University in St. Louis School of Law in 2013. She earned her undergraduate degree from James Madison College at Michigan State University in 2009.

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