Pot in the workplace: Prop 1 has Michigan employers flummoxed

Workplace experts say the proposed ballot initiative to legalize marijuana in Michigan would not prevent employers from creating and enforcing zero-tolerance drug policies. Employers, meanwhile, say the language is vague and worry it could be subject to interpretation by courts.

Nov. 9: You’ll never guess which Michigan counties loved weed (Kidding, you will)
Nov. 6: Michigan approves recreational marijuana. What you need to know.

The possibility that recreational pot will soon be legal in Michigan is giving businesses heartburn, while ensuring plenty of work for human resources managers and labor attorneys.

Some companies are concerned that a statewide ballot proposal to legalize recreational use for adults would jeopardize their ability to enforce drug-free policies. Others say it’s hard enough now to find skilled workers who can also pass a drug test, and legalizing marijuana would make that task even harder.

Bridge series on ballot issues

Beginning today, Bridge Magazine is providing an in-depth look at the three statewide ballot proposals that Michigan voters will decide Nov. 6.

Throughout this crucial election year, Bridge and the nonprofit Center for Michigan are providing fact-based, data-driven information to voters about elections for Governor, Attorney General, Secretary of State and other statewide and legislative offices. This includes ballot initiatives. This ballot issue series continues through Thursday.

Proposal 1 (legalizing recreational marijuana)

Proposal 2 (redistricting)

Proposal 3 (voting access)

MORE BRIDGE RESOURCES:

Proponents of Proposal 1, meanwhile, say they intentionally accounted for employer concerns when drafting the ballot language. The initiative states that passage wouldn’t prevent companies from choosing not to hire, disciplining or even firing someone who fails a drug test, violates a workplace policy or shows up high to work.

It’s almost certain that inevitable disputes over marijuana in the workplace will be tested in court. Recreational use of marijuana remains illegal under federal law, even as Michigan voters approved decriminalizing medical use a decade ago.

“It’s something employers are dealing with, whether Proposal 1 passes or not,” said Josh Hovey, a spokesman for the Coalition to Regulate Marijuana Like Alcohol, which backs the marijuana initiative on the Nov. 6 ballot and consulted the Michigan Chamber of Commerce and other business groups when drafting the language.

Bridge talked to the coalition backing Proposal 1, attorneys from Michigan and other states that specialize in employment and cannabis law, and employers to explore what may — and may not — happen should voters legalize marijuana in November.

Alex Leonowicz, an attorney with Howard & Howard Attorneys PLLC in Royal Oak, said employees should make sure to ask current or prospective employers about their drug policies.

“If it’s not already in your business, it’s going to be,” said Alex Leonowicz, an attorney with Howard & Howard Attorneys PLLC in Royal Oak.

What does the statute say about the rights of employers should voters adopt recreational use of marijuana in November?

Here’s what Proposal 1 says:

“This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer's property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marihuana. This act does not prevent an employer 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 marihuana.”

So, that means Michigan businesses are free to restrict or ban pot use as they see fit, right?

Maybe. Several attorneys with expertise in employment and cannabis law told Bridge that the language as written would allow employers to continue to set — and enforce — their own drug policies.

But Wendy Block, of the Michigan Chamber of Commerce, said that language is too vague and leaves that ability open to interpretation. The chamber, she said, advocated for language that would have exempted private employers from its regulations.

The Michigan Chamber, in citing its opposition to Proposal 1, said the proposed law isn’t specific about whether employers can enforce their drug-free policies whether the employee is on the job or off the clock, how impairment is defined, or whether a company can withhold unemployment or workers’ compensation benefits for a positive drug test or workplace injury related to marijuana use.

“All of these things will be litigated,” said Block, the chamber’s vice president of business advocacy. “People will push the envelope on many of these questions, and the courts will have to decide, ‘Well, what did the proponents mean by this language?’ Similar to medical marijuana, there will be decades of litigation that follows this proposal.”

What’s the biggest issue for employers right now when it comes to legalization?

Resoundingly, attorneys said the main challenge for employers is that, unlike alcohol, there’s still no reliable test nor legal standard to determine impairment from marijuana.

This is posing a problem for more employers as the economy reaches near-full employment and companies struggle to find workers to fill open jobs.

“Legalization of recreational marijuana will make that problem even worse, because (businesses) have enough trouble right now finding people who can pass a drug test,” said Mike Johnston, vice president of government affairs for the Michigan Manufacturers Association.

“The safe thing and smart thing for manufacturers is to not hire somebody who doesn’t pass a drug test,” Johnston said. “The risks are too great for both the company and the employee.”

Data are mixed on whether legalization of recreational marijuana in other states contributed to increased use, according to the nonpartisan Citizens Research Council of Michigan, which analyzed the ballot initiative. The organization said, however, that economic principles would suggest that decriminalizing marijuana would lead more people to use it, though that effect is difficult to quantify.

Unlike alcohol, THC, the psychoactive component in marijuana, can remain in a person’s system for far longer than the high produced by the drug. That affects both the pre-employment drug screening that many employers require, and the ability to determine whether marijuana contributed to a workplace accident, said Jim Reidy, a labor and employment attorney at Sheehan Phinney Bass & Green PA in New Hampshire, who consults with the Society for Human Resource Management, a professional group, on workplace issues.

It’s “the new ‘don’t ask, don’t tell,’” Reidy said. “Employers are almost in an impossible position.”

A positive drug test after a workplace accident may — or may not — indicate the worker was under the influence of cannabis at the time, said Benjamin Sobczak, an attorney with Dickinson Wright PLLC in Troy.

“You can’t give that employee the benefit of the doubt, right, because you’ve got to be safe with your policies and what’s best for the company,” he said. “Tie goes to the employer in a no-tolerance policy, because the alternative is people could be under the influence and cause an accident and you didn’t run that test.

“If that test gets created for cannabis,” Sobczak added, “then I think now you really may have to take a harder look at this.”

What should employers do?

Jim Reidy, a labor attorney in New Hampshire who consults with the Society for Human Resource Management on workplace issues, said the lack of a standard to determine cannabis impairment is a big challenge for employers.

If legalized pot passes, employers should use the time between passage and when the law takes effect to review their policies and experiences from other states, said Michelle Lee Flores, a labor and employment lawyer with Akerman LLP in Los Angeles.

That includes: whether employers have federal contracts, since marijuana is still illegal at the federal level; the language in their employee handbooks regarding drugs; their policies and procedures if an employee tests positive for cannabis; guidelines for managers if they suspect an employee may be under the influence of marijuana; policies and procedures for random drug testing; and whether to allow edible marijuana products or oils — some of which do not contain THC — on company property.

“The most important thing for employers is to keep an eye on the changing laws and which laws apply to them,” Reidy said, especially organizations that have operations in more than one state and may have to comply with differing laws.

What do the courts say?

Decisions are mixed across the country. A federal case in Michigan, for instance, was brought against Walmart by a former employee from Battle Creek, who was fired after testing positive for marijuana. The employee had been diagnosed with cancer and had a medical marijuana registration card under Michigan law. Federal courts sided with the employer, ruling that the Michigan law does not restrict employers from disciplining employees for marijuana use.

A state court in Rhode Island, however, sided with a woman who was denied a paid internship because she was a medical marijuana patient and said she would fail a pre-employment drug test. This decision would not be binding on Michigan, but the  employee-friendly ruling demonstrates the different interpretations judges have taken when deciding marijuana lawsuits.

Those cases dealt with medical marijuana, which in Michigan requires a physician’s approval and a state registration card. Recreational use is currently illegal in Michigan, though attorneys and employers alike expect the courts to weigh in on cases brought under the recreational statute if voters approve it in November.

“The judiciary is meant to fill in the space between the words. That happens all the time,” Sobczak said. “In some way, these type of things being brought up to the court system is the way it’s supposed to be.”

I use marijuana on weekends or after work. I never show up high to my job. If adult recreational marijuana use becomes legal in Michigan, I don’t have to worry about being fired, right?

Wrong. If your employer has a zero-tolerance drug policy, you could still be fired if a drug test turns up positive, attorneys say, even without a reliable test to determine if a worker was impaired while on the job.

Leonowicz, with Howard & Howard, said employees should make sure they know and understand their current or prospective employer’s policies on drug and alcohol use, including how often and what type of drug screening is done.

Employers have a role in that, too, said Scott Dwyer, an employment law attorney with Mika Meyers PLC in Grand Rapids. Companies should be clear about their policies and drug testing requirements with current and potential employees, and about whether using marijuana off the clock could affect their employment.

“It’s good HR practices,” he said.

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Comments

Don
Tue, 10/09/2018 - 8:54am

Lie dictor test were ruled Unconstitutioal,,,, you can not be forced to testified against your self>>>> Is not a piss test the same!!!!

ltrucks
Tue, 10/09/2018 - 10:40am

Employers have handled alcohol abusers for years. I'm sure we will figure out how to handle marijuana users. It may be a bigger problem for employees. Some employers will figure ways to not hire users whether or not it is a behavior that interferes with performance.

John Q. Public
Tue, 10/09/2018 - 12:46pm

"Federal courts sided with the employer, ruling that the Michigan law does not restrict employers from disciplining employees for marijuana use."

Neither, though, does it require it. Employers are going to have to realize that using a positive blood test for the presence of THC as a prima facie reason to deny employment is counterproductive. Those who reach that conclusion sooner rather than later are at a significant advantage over their competitors in getting and keeping a competent workforce.

Lennie
Tue, 10/09/2018 - 2:42pm

It's been a long-standing practice to test employees that either cause damage or injure themselves on the job. If they test positive for many things they are handled as the company desires. If we are dealing with transportation employees, that's one thing. If somebody is being disciplined for putting too many pickles on a Whopper, that's another. But the one thing that is certain, those that are either retired or self-employed won't have to worry about some over the top police action.

Sometimes the legal system goes too far.

duane
Tue, 10/09/2018 - 3:24pm

What should be a deterrent for employers is that if an employee later shown to have smoked marijuana was part of an event that injured or killed people, either in the workplace or outside it will be the employer who is sued and will pay all cost levied in the case [not the employee]. There will be no defense, as MiOSHA has shown that employees are never cited for violating safety practice, only the employer, so the employee has the 'free' ride when under the influence of marijuana in the workplace.

You mention transportation employees, I wonder how many worried about pipeline #5 will vote for Prop #1, I wonder how many complaining about prescription medication and who is making them is voting for Prop #1, I wonder how many of those who complain about and don't trust businesses are voting for prop #1 while they ignore/protect the person actually smoking the marijuana and putting others at risk. Do they think someone one marijuana is safer when driving a forklift, or operation a toxic chemical operation or nuclear plant? They all better think about it now, for after the event it is too late. The reality is that their are still people getting drunk and not being fired, so why do they think legal marijuana will be easier/better?

Anonymous
Tue, 10/09/2018 - 4:08pm

Instead of using drug testing to try to prevent employees from using a legal substance or
dropping testing for cannabis impairment, why not measure actual impairment? I have developed a new public health app that is a general measure of impairment from cannabis or any source--anything that impairs reaction time, hand-eye coordination, balance and the ability to perform divided attention tasks--it is called DRUID (an acronym for “DRiving Under the Influence of Drugs”) available now in the App Store and in Google Play. DRUID measures reaction time, decision making, hand-eye coordination, time estimation and balance, and then statistically integrates hundreds of data points into an overall impairment score. DRUID takes just 2 minutes.

DRUID was recently featured on the PBS News Hour (https://youtu.be/U_uq_9_M80E?t=10m9s) and in Wired magazine: https://www.wired.com/story/portable-field-sobriety-tests/ DRUID is the Gold Standard for impairment testing. Cannabis researchers at Yale, Brown, Johns Hopkins, WSU and UC Boulder are using DRUID in their labs. My colleagues at Washington State University have developed a THC assay device using ion mobility spectrometry, and together we are working with the Cannabis Alliance in Washington state to implement a workplace safety testing program.

After obtaining my Ph.D. at Harvard, I have been a professor of psychology at UMass/Boston for the past 40 years, specializing in research methods, measurement and statistics.

Drug testing, of course, does not measure impairment--my app does, and thus can contribute to workplace safety. As the director for safety of a steel mill I was talking to said, when imagining pitching DRUID to his workers: "Wouldn't you like to know that the guy who is sending 2 tons of steel your way has all his wits about him?"

Michael Milburn, Professor
Department of Psychology
UMass/Boston

UNSOLICITED ENDORSEMENT OF DRUID:
https://www.leafly.com/.../dui-101-why-per-se-laws-work...
“ If we want to get serious about measuring impairment we will need to move to devices that gauge impairment by testing cognitive and physical functionality, along the lines of the DRUID app”

Ian Mitchell--Ian Mitchell is an Associate Professor of Emergency Medicine at the University of British Columbia. He is the qualified investigator for a randomized controlled trail of vaporized cannabis for PTSD and a contributing editor for the Using Medical Cannabis journal. Follow him on LinkedIn or on Twitter @travels2little.

money hungry dog
Tue, 10/09/2018 - 10:04pm

All you care is about making money, no test in the world will tell me how fast i react to something and then tell me that im " high" because i reacted to slow. everyone is different. THERE WILL NEVER BE A PORTABLE MACHINE THAT TELLS HOW MUCH MARIJUANA IN % IS IN MY SYSTEM OR IF I SMOKED JUST 10 MINUTES AGO OR HOURS AGO AND THAT IM IMPARED.. Good old peanut butter , put on your tounge attaches to fat soluable thc molecules in your saliva and dilutes the Thc in your saliva to minimal levels, so does rinsing your mouth with vodka. So your going to assume that a tired overworked person coming home from a 12 hour shift is going to pass your DRUID test. I can be high as a kite and talk to the pope and you would never be able to tell. Money hungry dogs and your DRIUD APP are a total failure. Unless you know how to test blood thc levels on the spot like a diabetic tests his sugar, stop wasting your time on this worthless DRUID APP.
Your DRUID machine is a failure, Test me in the morning when im still not fully awake driving to work and i'll fail your machine every time even thou im not high. You can fool some people some of the time but you cant fool everyone every time. We tested your app and we passed while being high as a kite everytime but failed when we were tired after a long day of work. good luck with that fake app.

jacmac
Thu, 10/11/2018 - 4:35pm

Could the amount of THC be limited in the cannabis being sold to limit any negative issues from using it?

duane
Thu, 10/11/2018 - 5:13pm

I am afraid it will be like cigarettes, different people will react to it differently, people will use as many as they like in any given time, there will be those that use it to the extreme, there will be those who 'bum' them from friends and acquaintances, there will be any number of ways that people will do what was not expected nor hoped for by others. We have seen that when it is illegal, making it legal only expands the number of people that will use/even abuse it.

Lori
Tue, 10/16/2018 - 9:01pm

Regarding users and the workplace. Remember, just because it's not legal at this very moment doesn't mean users don't get it from wherever, they are using it now and probably have been for years. Honestly, I'm far more concerned having an overconfident drunk on the same roadway with me than someone that may be a little high and more so than not probably going under the speed limit as opposed to some drunken fool overconfidently hurdling down the highway way over the speed limit with their reaction time and reflexes seriously compromised. Keep in mind the people in chronic pain working and driving with their prescription drugs that in many cases may be possibly alleviated with marijuana instead which may have a slightly safer edge.