Guest Column

Legalizing marijuana sure to impact Michigan employers

September 7, 2018
| By Randy Boss |
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The battle for legalizing marijuana in Michigan reaches its climax Nov. 6. That’s when voters will determine if the state should allow the possession and sale of up to 2.5 ounces of cannabis for adult recreational use while individuals 21 and over — and those who have appropriate medical licenses — would be able to keep up to 10 ounces of pot at home. But this new law, should it pass, will go well beyond impacting those many individuals who want nothing more than to chill out in their living rooms listening to Grateful Dead albums while going one toke over the line.

The number of people using marijuana in the United States is on the rise, both at home and in the workplace. Company drug testing services report more positive tests for marijuana, both in pre-employment drug screens and drug tests conducted for other reasons. The penalty for a positive test is often a refusal to hire or, for those who are already employees, discipline up to and including termination.

The concerns for the impact of marijuana in the workplace seem to be founded in fact. The National Institute on Drug Abuse notes the short-term effects of marijuana include impaired body movement, difficulty with thinking and problem-solving, memory problems and an altered sense of time. A deadly combination when operating a high-powered saw or driving a tractor-trailer.

In May 2015, an article in the Journal of Occupational and Environmental Medicine concluded that while marijuana use may be reasonably safe in some controlled environments, its association with workplace accidents and injuries raises concern.

Should the Nov. 6 ballot pass in favor of legalizing marijuana, employers will be required now more than ever to make sure their pre-employment drug-testing policies and employee handbook reflect the times. It’s important to make job candidates understand the company’s substance abuse policy can prohibit an employee from using or being under the influence of marijuana, including medical marijuana, at work. A policy needs to be in place making it crystal clear employees are prohibited from being impaired by marijuana while on the job, legal or not. Alcohol is legal, but find me an employer that says it’s OK to partake in a six pack while operating a crane.

But the OK on recreational marijuana opens up other areas of concern for employers. Marijuana can stay in a person's system for 24 to 48 hours after casual use and up to a month if a person is a chronic user. So, having an accident on a Tuesday and drug-testing positive because someone had a joint while watching the football game on Sunday raises certain legalities, like whether or not a person's job performance is being impacted by their weekend activities. As long as they aren't as high as the proverbial kite at work, should an employer be concerned?

Still, businesses have to protect themselves. Even Josh Hovey of the Coalition to Regulate Marijuana like Alcohol (CRMLA), the pro-legalization group that placed the measure on the ballot, agrees, saying, “The coalition felt it was important for business to have the right to test employees and reject or fire them for failing a drug test.” Unfortunately, some experts predict that with so many Michigan businesses already struggling to find skilled workers who can pass a drug test, that there will be more increased challenges once recreational marijuana is legal.

So, with businesses already facing an opioid epidemic, we now toss marijuana into the drug-testing mix. But with more and more workers taking advantage of medical marijuana and with legalized recreational use possibly just around the corner, Michigan employers must determine whether to maintain zero-tolerance drug policies or create more tolerant guidelines.

Because Michigan is an at-will state, employers don't really need a reason to fire employees. But the courts sided with three employees of Walker-based Challenge Manufacturing Co. in 2014 that were denied unemployment benefits following termination for failing a drug test. And the legalization of marijuana is sure to ratchet up the number of lawsuits, as employers begin using it as a basis for either not hiring future employees or terminating existing ones. Labor experts recommend employers instead sit down with qualified candidates who fail pre-screening drug tests, even those with a legal medical marijuana card, and draft a contract that states they will be terminated if they fail any subsequent testing, either routine or following an incident. This would also cover employers against lawsuits brought forth by the weekend tokers.

What will come to light once the haze of smoke dissipates is Michigan employers need to be diligent and take a hard reality check on their pre-employment drug testing and what their drug policy is when a workplace injury occurs. And, once criteria are met, keep their employee handbook up to date and written in language that can never be quibbled with or wrongly interpreted. For example, letting employees know the lunchtime smoking area outside your building doesn’t include partaking of anything you rolled yourself on the way to work that morning.

Randy Boss is a certified risk architect at Ottawa Kent in Jenison. He designs, builds and implements risk management and insurance plans for middle-market companies in the areas of safety, work comp, human resources, property/casualty and benefits. He can be reached at rboss@ottawakent.com.

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