By William J. Hallan, MRA Executive Vice President, COO and General Counsel
You may be surprised to learn that 29 states and the District of Columbia have legalized marijuana in some form. Most have authorized medical marijuana use while seven states have legalized marijuana for recreational use, including Alaska, California, Colorado, Maine, Nevada, Oregon, Rhode Island, and Washington.
In Michigan, since 2008, marijuana can be obtained by prescription, though in 2018, we are likely to see a ballot initiative that would legalize marijuana for recreational use.
Even with state legalization sweeping the country, conflict still exists with federal law. Marijuana remains a Schedule 1 substance and is illegal for any purpose under federal law. Although federal law preempts state law in this matter, the Drug Enforcement Administration (DEA) has taken a hands-off approach to enforcement.
The conflict between state and federal law is one of the reasons why there is a vast grey area on employer compliance. For example, in Michigan, must an employer permit the use of marijuana on its premises by an employee who has a valid prescription? What about an employee that used marijuana outside the workplace but is under the influence while at work?
Michigan law addresses both questions and does not require employers to accommodate the ingestion of marijuana in the workplace or any employee working while under the influence of marijuana. MCL 333.26427(c)(2).
As such, some employers require that their workplaces be drug free and have adopted zero tolerance policies for marijuana and other drugs. Interestingly, Michigan is one of the few states that does not regulate workplace drug testing. Thus, Michigan employers may conduct different types of drug testing such as pre-employment, random, post-accident and reasonable suspicion drug tests. And after a positive drug test of a banned substance, Michigan employers maintain the right to fire the employee.
However, while Michigan law provides some cover to employers seeking to enforce their drug policies, employers should be mindful of various legal implications.
For example, an employee may allege that they have a disability protected by the ADA requiring reasonable accommodations, that the testing occurred in a manner that invaded their privacy, or that a false accusation caused defamation. Diving into the specifics of each is beyond the scope of this article, but when adopting a drug-free workplace or adopting a zero-tolerance policy, employers should be mindful of the following considerations.
• Develop a written policy.
• Provide notice of the policy to employees and applicants.
• Implement the policy in a fair, consistent, and non-discriminatory manner.
• Ensure that you protect your employees’ confidentiality.
The Substance Abuse and Mental Health Services Administration provides an excellent online toolkit on drug-free workplace programs that is worth consideration. However, while several model policies are available online, Michigan Retailers Association encourages you to consult with your legal counsel to ensure that you adopt a policy that complies with Michigan and federal law and that also meets the needs of your business and your employees.
