By Thomas Franz
BridgeTower Media Newswires
DETROIT-When Proposal 1 passed last year to legalize the recreational use of cannabis, it left employers in a bit of a haze as to how that would impact their drug policies going forward.
To clear the air, employment attorney Marlo Johnson Roebuck of Jackson Lewis PC in Southfield spoke recently to address many questions she's been fielding from business clients over the last several months.
"We get a lot of questions from employers about what does this mean," Roebuck said. "One of the things we want to share is that employers can still follow a drug-free policy. That does not change. An employer can still refuse to hire an applicant who tests positive for marijuana and an employer can still discharge an employee who tests positive for marijuana."
On the medical marijuana front, Roebuck said state courts have continued to side with employers. In Eplee v. City of Lansing, the Michigan Court of Appeals ruled against the plaintiff, who was an applicant who failed a drug test but had a medical marijuana card. The court ruled the employer didn't violate the Michigan Medical Marihuana Act by revoking a conditional offer of employment.
Regarding drug policies, Roebuck emphasized the importance of having a written policy.
"Businesses can still follow their own policies, but you need to have a policy in the first place," Roebuck said. "You don't want to stray from it if it's a drug-free policy. You still have a right to enforce it."
However, for employers with multi-state operations in Rhode Island, Massachusetts or Connecticut, Roebuck said courts in those states have ruled in favor of employees for businesses violating discrimination statutes, not marijuana statutes.
"The whole purpose of medical marijuana is that the person may be using it to help them with a disability, and that may make businesses violate a discrimination statute without violating the marijuana law," Roebuck said. "We're dealing with some murky waters going forward."
Brian E. Koncius of Bogas & Koncius PC in Bingham Farms has been working with employees in marijuana law, and said that from a strategic standpoint, filing cases under the Persons with Disabilities Civil Rights Act could be more fruitful than marijuana statute cases.
"I think that's in play, and I think that's the way we as plaintiff's attorneys seek protection for individuals who are appropriately and reasonably using marijuana in a way that's in line with the statutes that we've passed in Michigan," Koncius said.
Koncius said the new marijuana laws have given a false sense of security to employees.
"I find that you have a misperception by employees about what these laws mean for them, and that misperception varies greatly from one employee to another. I find that a lot of people hear marijuana is legal, even though that's not what is really said in the laws," Koncius said. "It means you can do certain things and use it in certain ways and certain places that are prescribed in the act."
Koncius said one of the trickiest parts to the new laws will be cases of employees working under the influence of marijuana and the difference from being under the influence of alcohol.
"We know the influence of alcohol can be tested fairly quickly by a blood alcohol test, but marijuana and the length of the time THC stays in the body versus the time someone is impaired by using it is a very different process. We don't have the immediacy of results," Koncius said.
Koncius said employees' attorneys will have to work to make sure workers aren't getting fired if they're believed to be impaired or their supervisors use it as a pretext to fire someone.
"That's something to guard against and I think that's one of the areas that's going to play out in terms of looking at the protection that's provided under these acts to employees. It's going to be a balancing act for employers in making sure their HR staff and legal staff are smart and thorough and have trained their managers in what to do for these matters," Koncius said.
Published: Wed, Jul 24, 2019
