COMMENTARY: The passage of Proposal 1 - What it means for employers

By Mark G. Morgan
Now that Proposal 1 has been approved by Michigan voters, what does this mean for the employers in this state? 

First, although the act is stated to take effect 10 days after the official certification of the vote, we do not know when official regulations will govern the use and sales of marijuana. Some legislators anticipate that marijuana will not be commercially available until early 2020. For reference, it took the state of Colorado nearly 2 years for laws and regulations to become effective for the use and sale of recreational marijuana. Nonetheless, from an employment standpoint, recreational marijuana will pose some challenges for employers when regulations are finally sorted out.

Although recreational marijuana changes many legalities towards the purchase, sale, and use of marijuana, federal law still protects employers in several ways. Specifically, Department of Transportation regulations still prohibit the use, possession, and delivery of marijuana. In addition, employers do not have to allow or accommodate marijuana in the workplace. Furthermore, employers have the discretion of disciplining employees for violating workplace drug policies, which may prohibit the use of marijuana, or being under the influence of marijuana. This essentially means that employers can refuse to hire, may institute corrective action, or terminate an employee for using, possessing, or being under the influence of marijuana on company property.

Depending on the employer’s drug policies, the employer may also be able to have employees drug tested if reasonable suspicion
exists that the employee is under the influence of marijuana. In essence, assuming the employer has an anti-drug workplace policy, employees cannot use, possess, or be under the influence of marijuana on company property.

While Proposal 1 will eventually make recreational marijuana legal in Michigan, employers simply need to ensure that they have the correct policies in place to prohibit its use, possession or being under the influence of on company property. By checking and updating company policies, employers can protect themselves legally. Consult your labor/employment attorney to update and revise your workplace drug policy.
Mark Morgan is a licensed attorney for a nonprofit corporation in Flint, where he works in Human Resources and Compliance. He attended Michigan State University and University of Detroit Mercy School of Law, graduating in 2013.