On Tuesday, November 6th, Michigan residents voted yes on Proposal 1, the “Michigan Regulation and Taxation of Marihuana Act,” which permits individuals over the age of 21 to possess up to 2.5 ounces of marijuana, among other things.*
The new law does not require employers to accommodate the use of recreational marijuana in the workplace. It also does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person for violating a workplace drug policy.
However, it is likely that Michigan employees will increase their recreational use of marijuana outside of work. Because many employers still have zero-tolerance drug policies, they may have difficulty hiring and retaining talent if candidates and employees who use marijuana for recreational purposes cannot pass a pre-employment or random drug test.
While employers in safety-sensitive industries, such as manufacturing, should maintain their zero-tolerance policies, employers in other industries may consider relaxing their policies to treat marijuana more similarly to alcohol. Many tests used to detect marijuana may pick up on marijuana consumed weeks before the test when the individual is no longer impaired and therefore, employers should reconsider the drug tests they require.
As for employers in the transportation industry, they should remind their employees who drive commercial motor vehicles or who are in safety sensitive positions that marijuana remains a Schedule I controlled substance and therefore, all use is prohibited. Therefore, under the Federal Motor Carrier Safety Regulations, if a driver or a worker in a safety-sensitive position tests positive for marijuana, then he or she is not physically qualified for the position.
*The Bureau of Medical Marihuana Regulation spells marijuana with an “h” instead of a “j” going back to the federal Marihuana Tax Act of 1937
Katherine F. Cser focuses her practice on labor and employment issues. She counsels and advises business owners, managers and human resources professionals on workplace issues including discrimination, retaliation, wage and hour laws, medical leave laws, among other concerns.
She has also practiced as a commercial litigator on a wide variety of commercial disputes in federal and state courts and arbitral proceedings. Katherine has experience in commercial transactions litigation, as well as restrictive covenants and intellectual property and related tort claims.
Before joining Kerr Russell, Katherine was an attorney in the New York City office of a national law firm. In 2014 and 2015, she was named to the New York Metro Super Lawyers’ Rising Stars list. In 2016, 2017, and 2018, Katherine was named to the Michigan Super Lawyers’ Rising Stars list.