08 November 2018

Proposal 1 Passes in Michigan: What Employers Need to Know

On Tuesday, Michigan voters passed Proposal 1, or what will now be known as the Michigan Regulation and Taxation of Marihuana Act.  Although Michigan voters passed the proposal to legalize marijuana for adult recreational use, employers can still “just say no” to hiring or retaining employees who violate workplace drug policies.

Technically, what does Proposal 1’s passage mean?

Adults age 21 and older can possess up to 2.5 ounces of marijuana on their person or up to 10 ounces in their home, most of which will have to be secured. Additionally, adults can grow, but not sell, up to 12 plants in their home for personal use. Michigan is the ninth state to legalize marijuana (AK, CA, CO, ME, MA, NV, OR, and WA).  Remember, however, that marijuana remains illegal under federal law.

When will Proposal 1 become effective?

Although adults will no longer be arrested under state law for simple possession and use of marijuana ten days after the election results are certified (which should be by early December), the Department of Licensing and Regulatory Affairs can take up to one year to develop rules and regulations that will govern the state’s recreational marijuana industry before it begins accepting applications. Therefore, it is not likely that marijuana will be commercially available for sale until early 2020.

What does this mean for my workplace?

First, remember MMMA. In 2008, Michigan enacted the Michigan Medical Marihuana Act (MMMA) by popular referendum and legalized the usage of marijuana for the treatment of medical ailments. However, MMMA did not:

  • Regulate private employment,
  • Protect Michigan employees from disciplinary action for otherwise lawful use of medical marijuana, or
  • Create any obligation by employers to accommodate medical marijuana.

Similarly, Proposal 1 does not:

  • Require employers to permit employees to possess or use marijuana in the workplace,
  • Prohibit employers from disciplining an employee for violating a workplace drug policy or for showing up for work with marijuana in his or her system, or
  • Prevent employers from refusing to hire, discharge, discipline, or otherwise take an adverse action against any person because of that person’s violation of a workplace drug policy.

Although there may be legal challenges, we believe that employers may still have policies that say what is, and what is not, acceptable workplace behavior, including the maintenance of zero-tolerance policies for their workforce.

Is there anything I should do?

Evaluate. Employers should evaluate their current prohibited substances policies, specifically considering:

  • Current policy language: The employer’s current policies on prohibited substances, including its position on medical marijuana. Does the employer have a clear statement that marijuana is considered an illegal substance?
  • The form of testing: Given that there is currently no accurate, on-demand impairment test for THC, employers should evaluate whether their organization will retain a policy where any detectable level of a prohibited substance will result in adverse action, or whether the development of a threshold cutoff should be considered. Employers should also evaluate what testing method (e.g., hair, urine, oral fluid) their organization will use to test for THC.
  • The penalty for positive tests: Employers must consider the balance between safety and staffing when evaluating current policies, and determine whether the organization will retain a “zero tolerance” policy or consider alternatives such as Last Chance Agreements.

Communicate. Employers need to be clear about their expectations. Therefore, once an organization has considered its stance regarding employee use of marijuana, employers should communicate that stance to all of its employees. Employers should communicate that workplace safety, employee productivity, and organizational liability are of paramount importance to the organization, and it is with that backdrop that the organization has considered how the passage of Proposal 1 may impact its prohibited substances policies.

Please contact the authors or your Miller Johnson attorney with any questions about this new law.