What Does Michigan’s Recreational Marijuana Law Mean for Employers?

This past November, Michigan voters decided to pass a proposal allowing for the recreational the use of marijuana for persons 21 years of age or older in private locations where the owner does not forbid it. The law is nuanced, but generally it allows individuals to use and possess up to 2.5 ounces of marijuana and grow as many as 12 marijuana plants for recreational use in a private residence. There are many important aspects of the law to consider.

For example, the law does not allow an individual to drive while under the influence of marijuana and it places restrictions on the proximity of marijuana facilities to schools. It also generally prohibits smoking marijuana in public. The law also establishes a complex framework for the commercialization, licensing and taxation of marijuana.

Does the new marijuana law matter for employers?

While the new law does not fundamentally alter employment relationships, it does present practical and legal challenges that employers will need to consider. Analysis of the what the new law means for employers has primarily fallen into two categories. On one side, critics argue the new law will fundamentally alter the way that Michigan’s employers operate because employers will implicitly be compelled to tolerate recreational marijuana use. On the other side, supporters of the law argue that the law will have little effect on employers as the law includes specific language providing that employers are not required to permit or accommodate the use of marijuana and that employers may discipline an employee for violating workplace drug policies or working while under the influence of marijuana.

The reality of the new law’s impact on employers likely falls somewhere in the middle:

Recruitment and retention. In Colorado, which legalized recreational marijuana in 2012, a tight labor market forced some employers to reconsider their zero-tolerance drug policies. In northern Michigan, much of the same economic pressures exist. Employers have often included zero-tolerance drug policies in employee handbooks. However, with a tight labor market, and increased normalization of marijuana use, northern Michigan’s employers – like Colorado’s –  may increasingly question the value of a zero-tolerance approach, especially for low-paying positions that can be especially difficult to fill.

Criminal background checks. While use of marijuana has been liberalized, this does not change the fact that prior to its liberalization it was illegal. (There is a legislative initiative underway to streamline the expungement of marijuana convictions.). In the meantime, employers who run criminal background checks will need to decide how to assess marijuana convictions and whether it even makes sense to consider marijuana convictions. This is especially true since statistical evidence demonstrates that minorities are more often charged, prosecuted and convicted of low-level drug crimes. For example, one study with data from the FBI showed that during the period from 2001-2010, white usage rate of marijuana was higher than the African-American usage rate of marijuana. Despite this, African-Americans were more than twice as likely to be arrested for marijuana possession (The Washington Post, June 4, 2013. The African-American/white marijuana arrest gap, in nine charts).

Employers should be wary of utilizing background checks in a way that would disparately impact minorities, thereby potentially leading to a discrimination investigation by the Equal Employment Opportunity Commission (EEOC).

Marijuana remains illegal under federal law. Employers need to remember that marijuana remains illegal under federal law. If your business is a federal contractor, or receives federal funds, you must play by federal rules. This means that employers need to be careful to ensure compliance with the Controlled Substances Act, the Drug Free Workforce Act and the Drug-Free Schools and Communities Act. Furthermore, employers who operate under the Department of Transportation’s regulations need to ensure compliance with federal law and regulations.

Under federal law, marijuana is still considered a Schedule 1 substance in the same class as heroin and cocaine. In 2013, under the Obama Administration, the Department of Justice issued the Cole Memorandum, signaling a shift in priorities away from prosecuting adult marijuana users who were complying with state law. But the Trump administration, under Attorney General Jeff Sessions, rescinded the Cole Memorandum. As a result, employers who operate with federal funds should be aware of a potential uptick in scrutiny under the Trump administration.

Apply policies uniformly. As with any workplace policy, employers should be careful to apply workplace drug policies uniformly in a non-discriminatory manner. In other words, treat your employees the same under a policy. If an employer fails to uniformly apply the policy, there is a risk of a discrimination claim based on disparate treatment. For example, if an employer suspends a white employee for violating a drug policy, but months later terminates a Hispanic employee for violating a workplace drug policy, this could lead to discrimination claim. Simply stated, just because an employer has the right to terminate an employee for violating drug policies, it does not mean that an employer has the right to apply policies unevenly or discriminatorily. Employers who fail to evenly apply workplace drug policies place themselves at risk of an investigation by the Equal EEOC or the Michigan Department of Civil Rights.

If your business is not legally or contractually obligated to have a zero-tolerance policy, consider revising your employee handbook to treat marijuana the same as alcohol. For many employers, a strict zero-tolerance policy – while legally defensible – may no longer make sense. Employers might consider policies treating marijuana use the same as alcohol. Would you let an employee drink on the job, show up to work intoxicated, or carry a bottle in his or her pocket? Probably not. As a result, employers may want to consider implementing some of the same policies for marijuana.

Conclusion

The new marijuana law creates implications that employers and employees will need to consider. One of the primary difficulties with marijuana is that it can be difficult for employers to determine when an employee is “impaired” by marijuana use. This places employer in a precarious situation.

Employers must balance federal law against state law, as well as economic realities against perceived risks. If there are no statutory, regulatory, or contractual obligations to have a drug-free workplace, employers have relatively wide discretion to decide whether it makes sense to have a zero-tolerance policy, or whether a more nuanced approach is appropriate.

Regardless of what an employer decides, an employer should be prepared to give legitimate, non-discriminatory business reasons for its policies. In determining what makes sense, employers may want to consider factors such as employee and customer safety, recruitment, retention and discipline. If a drug policy is adopted or changed, employers should evenly apply the workplace drug policies, update and clarify those policies in the employee handbook to avoid ambiguities, and educate management to ensure new policies are understood and adhered to.

Anders J. Gillis is an attorney with Parker Harvey PLC. Reach him at (231) 486-4507 or agillis@parkerharvey.com.

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