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How to Manage Marijuana in the MI Workplace

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“One of my employees appears to be under the influence of marijuana. The amount of work she completed every day has started a gradual decline.  Her coworkers tell me she smells like pot in the morning and after she comes back from her lunch break. 

Between marijuana being a Schedule I drug and both medical and recreational marijuana being legal in Michigan, I have no idea what to do!”

We saw it coming.  Medical marijuana has been legal in Michigan for over 10 years, and the legalization of recreational marijuana has been inching its way across North America for years.  Now it’s here in Michigan.

Although both ballot proposals received the MI voters seal of approval, many Michiganders are still strongly opposed to legalization and are looking for ways to resist the change.  But even employers who are not opposed to legalization are still unsure how to handle marijuana in the workplace.

No matter what your opinion of the law is, it’s here, and as employers, we must figure out how to comply with it while maintaining productive and safe workplaces.

If you are a business owner, leader, manager, or supervisor, the questions swimming around in your head may include:

  • Can I legally fire someone who has a medical marijuana card if her performance is poor?
  • What if someone tests positive for marijuana but insists that he only smokes on the weekends?
  • Should I be concerned about a claim of discrimination based on disability if I let someone go who has a medical marijuana card but was in a position where he could be a danger to himself and others?

Well, the good news is that handling these situations with sensitivity and within the law is possible.  Read on to immediately gain the confidence you need to legally handle a marijuana in the workplace situation in Michigan.

What’s MI Law Say About the Workplace?

Let’s start by getting clear about what the law says.  No Michigan law prohibits employers from creating drug-free workplaces that ban marijuana.  It also doesn’t prohibit workplace drug testing for marijuana either before or after hire, for suspicion or random tests.

Therefore, if your policy states that individuals will not be hired or cannot continue employment if they fail a drug test, regardless of whether they have a medical marijuana card, they can be turned down for a job or let go.

That sounds straightforward, right?  But proceed with caution.  If a person is using medical marijuana, they may have a condition that is protected under the federal Americans with Disabilities Act (ADA) or the Michigan Persons With Disability Rights Act (PWDCRA).

Impairment

The most significant issues around marijuana in the workplace are questions around impairment.

First, there is not a large body of research around the impact of being under the influence and work performance and safety.  In fact, The Conversation ran an article last year that stated, “Based on six studies, the review did not find enough evidence to either support or refute a statistical link between marijuana use and occupational injuries or accidents.”

Second, there is no indicator for significant impairment.  Marijuana will be detectable in a urine test from 3 to 30 days, depending on how frequently it was used (HealthLine.com cited Mayo Clinic Proceedings).  Other variables, including whether the individual is a habitual user and weight, can also impact the results of tests.  So, even someone who is using marijuana on a recreational basis on the weekend or in the evenings for medical purposes, will likely test positive, even if there is no impairment on the job.

Because of this lack of scientific support, employers who have individuals in safety-sensitive jobs, such as operating dangerous machinery or driving, have little choice but to follow a zero-tolerance policy.  They may decide to perform random drug tests.  Positions covered by the Department of Transportation regulations or Federal grants may also outline what tests must be provided and what testing results will be deemed a positive drug test.

For employees that are not in such high-risk jobs, the focus may be strictly on job performance.  Employers may feel more comfortable drug testing for suspicion only.

How to Manage the Uncertainty

  • If you want to effectively manage drugs (and alcohol) in the workplace, the first thing to do is create a policy. Having and consistently following a policy will go a long way toward ensuring everyone complies and protecting your organization from claims of discrimination.

Some employers will want to take action against an employee or prospective employee for being a safety risk or for low productivity as a result of their use of a drug – either legal or illegal.  Other employers will decide to allow employees with medical marijuana cards to pass a drug screen along with other legal prescription drugs, as long as the use doesn’t have a negative impact on job performance or safety.  Some will test for new hires, while others will only test for reasonable suspicion.  There is a wide variety of issues that a policy could cover.  The exercise of writing a policy gives you the opportunity to think deeply about what is right for your organization and then to put your philosophy in writing so it is clear to all employees.

  • The second thing you want to do is to clearly communicate the policy including training supervisors and managers about how to follow it. In fact, properly training supervisors on how to determine reasonable suspicion is a critical component of a drug policy.
  • The third step is to make job performance and safety your priority. Regardless of how you personally feel about using marijuana products, you are obligated by law to keep your workplace safe, and you are obligated by your position to ensure that your organization is productive.  A drug-free workplace policy is just a tool to ensure that happens.  Document and use corrective action to fix safety and performance issues as you always would.
  • The forth step is to reach out to a trusted expert for advice prior to taking action against an employee. This is a new and rapidly evolving area of employment law.  Laws are enacted, and then case law evolves as claims are brought, and judges and juries interpret and apply the law.  HR consultants and employment attorneys are your key resources to ensure that your solution to one problem doesn’t cause you and your organization more problems.

Real-world Scenarios

So, let’s get back to the scenarios that we brought up in the beginning of the article.  We’ll assume that in all these situations you have published policies that support your decision.  And of course, if your employees are unionized, be sure that you are complying with the bargaining unit contract.

See if you can answer these questions yourself before you peek at the answers below.

  • Can I legally fire someone who has a medical marijuana card if her performance is poor?
  • What if someone tests positive for marijuana but insists that he only smokes on the weekends and argues that recreational marijuana use is legal; can I still let him go?
  • Should I be concerned about a claim of discrimination based on disability if I let someone go who has a medical marijuana card but was in a position where he could be a danger to himself and others?

Answers:

  • You cannot terminate an employee for simply having a medical marijuana card. But at this time, you can terminate an employee who tests positive for marijuana. The Federal Appeals court that oversees federal laws in Michigan has ruled that just because you have a valid medical marijuana card, an employer is not required to provide an accommodation that allows an employee to test positive for marijuana.  Be sure to document the poor performance, use corrective action to help the employee improve, and if the pattern continues, discuss it with a trusted advisor so you can feel confident ending the employment relationship.  It is also important to keep in mind that you need to be consistent in your application of discipline for drug tests. Failure to do that, could lead to someone filing a disability discrimination suit, or discrimination based on any other protected classification.
  • The employee may be telling the truth, but there is no way to prove that.  If you have a no-tolerance policy, all individuals would be fired if they test positive, regardless of their explanation.
  • In general, there is always the potential for a claim, but if you document the safety issue of the position, you are not required to prove that marijuana in the system will result in accidents. If you have a no-tolerance policy, you’ll apply it uniformly.  This is even more critical when there is a potential safety risk, because you are obligated to maintain a safe workplace.

These are just some examples of how employers might handle marijuana in the workplace issues.  Every situation is unique, so be sure to run the details of your individual situation by an HR consultant or employment attorney.

Your Challenges

What are your biggest workplace challenges with the legalization of medical and recreational marijuana in Michigan?

You can leave your answer in a comment below.

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