Marijuana in Michigan – Employment Law
In the November midterms, Michigan voters approved a ballot initiative to legalize recreational usage of marijuana. Under the new law, adults over the age of 21 are allowed to use and possess up to 2.5 ounces of marijuana and grow up to 12 marijuana plants in their home for recreational use, without any medical approval or certification. Many Michigan employees and employers are now wondering- does this change anything with respect to marijuana in the workplace in Michigan?
The answer, generally, is no. Like alcohol, marijuana is now legal for recreational use, but that does not mean that Michigan employers have to allow employees to work under the influence or even bring the drug into the workplace. Employers can institute or continue to enforce zero-tolerance drug and alcohol policies and discipline employees who possess, distribute, or use marijuana at work, including firing employees for such activity. Employers can legally continue to drug test employees for marijuana usage and discipline, fire, or refuse to hire anyone who fails a drug test.
However, there is an important distinction between recreational marijuana usage and medical marijuana usage. The federal law prohibiting disability discrimination, the Americans with Disabilities Act, and the Michigan equivalent, the Michigan Persons with Disabilities Civil Rights Act, both prohibit employers from discriminating against employees with disabilities, with a history of a disability, with a perceived disability, or based on an association with a person with a disability. Many Michigan employees use marijuana for medical purposes relating to disabilities, which puts employers in a more difficult situation.
In 2012, Wal-Mart won a lawsuit brought by a former employee who was fired for testing positive for marijuana, which he used for medicinal purposes. The Court held that although the employee had a legitimate medical reason to use marijuana, and although Wal-Mart could not legally fire the employee for his underlying medical condition, nothing in the law required a private employer to continue to employ an employee who failed a drug test, no matter what the reason was. However, more recent cases in other states have been trending in favor of the employee, finding that it is a violation of laws prohibiting disability discrimination to fire someone for testing positive for marijuana usage when the employee has been approved to use the drug for medical reasons. This is especially true because, unlike testing for alcohol, marijuana testing does not show whether someone is currently under the influence of marijuana, only whether it remains in the person’s system. This means that an employee could have a legitimate medical reason to use marijuana at home, come into work the next day without being under the influence, and still test positive for having marijuana in his systems.
If you have any questions about how Michigan’s new marijuana laws will affect your rights in the workplace, or have any other employment law concerns, please contact Gold Star Law.
