Oh, oh, is my drug testing policy really going up in smoke now?

Gonna sit down in the kitchen
And fix me something good to eat
And make my head a little high
And make this whole day complete
‘Cause we gonna lay around the shanty, mama
And put a good buzz on

 Jonathan Edwards – Shanty

 If you are from Grand Rapids or the surrounding areas and if you grew up when I did, you know those lyrics as the “Friday Song.”  That’s because WLAV plays that song multiple times every Friday, and every Friday when I’m listening I turn it up and sing along at the top of my lungs.  A bit of my misspent youth remembered.

And, if you still live in Michigan like I do, for the very first time and very soon, the recreational use of marijuana is going to be legal . . . at least in your shanty.  On November 26, the Board of State Canvassers certified the November election results.  That means that on December 6 (some) recreational marijuana use became legal in Michigan and Michiganders are now able to “sit around the shanty and put a good buzz on.”

So what does that mean for employers?  Well, I’m glad you asked that.  First, don’t forget that we have been through something like this before.  Back in 2008, Michigan legalized Medical Marijuana.  Remember, see here.  In 2011, the Court in Casias, held that an employer could still fire an employee for violating its drug testing policy even if the employee had a valid medical marijuana card, you can see that here.  In 2014, we discovered that if you fired an employee for using medical marijuana that employee might still get unemployment, see here.  And then in 2017, we saw Rhode Island go a different way entirely, see here.  All of that raises the question for employers, “Where are we now?”  And that is a really good question

Let’s start with what the Michigan Regulation and Taxation of Marihuana Act (yes, they spelled it wrong again) allows.  Here is the summary:

Persons 21 or older may:

  • Possess, use or consume, internally possess, purchase, transport, or process 2.5 ounces or less of marijuana.
  • Within person’s residence, possess, store and process not more than 10 ounces of marijuana, and cultivate not more than 12 marijuana plants.
  • Assist others 21 or older in any of the above.
  • Give away or transfer without remuneration up to 2.5 ounces of marijuana so long as transfer is not advertised or promoted to public (anybody need a gift idea for that ne’re-do-well nephew?).

Any of these acts are not grounds for “arrest, prosecution, or penalty in any manner, are not grounds for search or inspection, and are not grounds to deny any other right or privilege.”

That seems pretty broad, that “deny any other right or privilege” language.  Does that mean if I am an employer that I can’t prohibit use?  No, it does not mean that at all.  The act specifically states:

“Sec. 4.1 (h)(3): 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 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 marijuana.”

OK, so we can all breathe a sigh of relief, that seems pretty clear.  We can refuse to hire or fire somebody who violates a “workplace drug policy” OR “was working while under the influence.”  Now remember, in Casias, the court held that the language, “(c) Nothing in this act shall be construed to require: . . . (2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana”  which is contained in the Michigan Medical Marihuana Act (spelling again) did not prohibit Wal-Mart from firing Mr. Casias when he tested positive for marijuana even when he had a card.  The language in the recreational statute seems even clearer to me.  In Casias, it seems to me the ACLU (they represented Mr. Casias) could have argued that he did not use at work and there was no proof he was “under the influence.”  Because the recreational statute allows an employer to fire for using at work and also for violation of a “workplace drug policy” OR “working under the influence” even that argument should not be available and the language actually seems to me to be more employer friendly.

Does that mean that all of you employers out there are free and clear?  Well not necessarily, don’t forget Braska.  You can see my discussion of that here.  In Braska, the Michigan Court of Appeals questioned the decision in Casias and gave the plaintiff’s unemployment.  Now they did that for two reasons:  First, because the Medical Act has a broad preemption provision in it that says:  “‘[a]ll other acts and parts of acts inconsistent with this act do not apply to the medical use of marijuana as provided for by this act.”.  Well guess what, the recreational act has similar language: “All other laws inconsistent with this act do not apply to conduct that is permitted by this act.”  And second the Court of Appeals stated that unemployment was state action so the employer’s conduct was not in question the states conduct was.  Can an employee make that same argument here?  Well you can make any argument you want, but what is different here is that the medical act as noted above does not require employers to “accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”  The recreational statute is broader and also allows employers to take “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 . . .”  So if an employee violated my drug policy have they committed “misconduct” under the unemployment act prohibiting them from getting benefits?  I would argue they do, but we will have to see.

 

So, before all of this causes you to “sit down in the kitchen” take a deep breath and we will see.  Of course, we will be keeping an eye on all of this, so stay tuned.