Michigan employers grapple with prospect of the passage of the Regulation and Taxation of Marihuana Act (Proposal 1)

November 2, 2018
Detroit, Michigan

On November 6, Michigan voters will have the opportunity to decriminalize recreational marihuana use by voting yes on the Regulation and Taxation of Marihuana Act (known as RMLA or Proposal 1 - ). The Act, written by the Coalition to Regulate Marijuana Like Alcohol, would extend the current protections available to medical marihuana users to recreational marihuana users, shielding them from punishment under Michigan law. Sara Moore, a senior attorney with Detroit-based management side labor and employment law firm Nemeth Law, P.C. says they have received numerous calls from clients who want to stay ahead of any false information that may be circulating about marihuana in the workplace if Proposal 1 passes.

“Employers want their employees to know that even if Proposal 1 passes, employers can take action against drug use that negatively impacts the workplace,” Moore said. “Like the current Michigan Medical Marihuana Act (MMMA), which says individuals will not be penalized for the medical use and cultivation of marihuana in Michigan, the proposed RMLA includes some limitations that minimize the potential negative impact of marihuana use on business operations and safety. For example, Proposal 1, like MMMA, provides that employers will not be required to accommodate marihuana use or to permit its use, possession, or cultivation in the workplace.”

Proposal 1 also:

  • Permits employers to refuse to hire, discharge, discipline, or otherwise take an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of the person’s violation of a workplace drug policy, or because the person was working while under the influence of marihuana.
  • Includes restrictions against operating or being in control of a vehicle, aircraft, snowmobile, off-road recreational vehicle, or boat while under the influence, and prohibits against possession or use in school busses, on the grounds of any preschool, primary school, secondary school, or correctional facility.

Moore says that many employers want to maintain drug-free, zero-tolerance policies and will still be allowed to do so if Proposal 1 passes.

“Generally speaking, it is each employer’s prerogative to adopt, maintain, and enforce a drug use policy that it deems consistent with its company culture, values, and needs and that will not change if Proposal 1 passes,” Moore said. “However, employers will want to review the language in their drug use policies to ensure that changes in the law do not undermine or alter the intended application of their policy.

”For example, Moore notes that a policy that refers to “illegal drugs” or “illegal substances” may not have the impact intended by employers if marihuana is no longer illegal in Michigan, and that revisions to clarify the meaning and define the terms for policies including this type of language would be advisable to eliminate confusion.

Proposal 1 comes at a time when some employers are trending away from pre-employment drug testing in order to save money or expand candidate pools, but Moore says employers should review and evaluate the testing requirements in their drug use policies overall and consider how such requirements can be applied to marihuana use.

“While pre-employment drug testing is designed to block users from entering an employer’s workforce altogether, reasonable suspicion and post-accident tests are more focused on identifying, punishing, and prohibiting at-work use. Depending on an employer’s goals, it may take more than re-defining a few terms to ensure that the language in its drug testing policy is consistent with its objectives,” Moore said. “Reasonable suspicion and post-accident testing is relatively simple when it comes to alcohol use and whether the employer can reasonably conclude that the employee was under the influence of alcohol while at work. With marihuana, however, a positive test result does not reveal whether marihuana was consumed in the workplace, or on the way to work, or at a party two weeks prior.”

Moore says passage of Proposal 1 will create a challenge for employers who do not wish to punish off-the-clock marihuana use, but do not want employees working while under the influence either.

“For such employers, careful revisions to their existing policies will likely be needed. On the other hand, employers who wish to maintain existing broad, drug-free policies regardless of whether recreational marihuana use becomes legal may need little to no revisions. In either case, a review to ensure applicable policies accurately reflect regulatory goals is recommended,” Moore said.

About Nemeth Law, P.C.

Nemeth Law specializes in arbitration, mediation, workplace investigations, employment litigation, traditional labor law and management consultation/training for private and public sector employers. It is the largest woman-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.