Despite the passage of legalized recreational marijuana use in Michigan (set to go into effect in early December---10 days after the certification of election results), employers can still decide that they want to be “drug free.” The challenge employers now have is deciding what does this mean? Of course a worker cannot show up for work under the influence of any drug (or alcohol). Anyone can be fired for that. The problem is that, unlike alcohol, there is not yet a test to determine when a worker is “under the influence” of marijuana. If an employee is drug tested, either before employment or during (whether randomly, due to an injury, or suspected drug use), a positive drug test for marijuana just indicates use in the last few weeks---not necessarily that day.
Employers have a decision to make: Are you completely drug-free (no positive tests allowed for marijuana) or are you okay with off-hours use that does not impact the work place? You as the employer will have to decide: (1) Does off-duty drug use impact an employee’s job? (2) Do you morally have an objection to the use of marijuana and therefore want it completely prohibited? (3) Can you find enough workers for your work force if completely banned? (4) Do you have safety-sensitive jobs requiring more stringent rules?
Most of my clients are allowing off-work use, but clearly will discipline or terminate an employee if he/she is under the influence at work or not attuned to work duties. Most employers are also mandating that anyone in safety-sensitive positions also be prohibited from marijuana use (again, since there is no test to determine if a worker is under the influence, the employer is left with little choice but to have this black-white rule). If an employee is an accident (for example, driving or using machinery) with marijuana in his/her system, the employer could be liable. This leaves employers little option but to require employees with such positions to refrain from recreational marijuana usage (and to have policies that require discipline or termination if the employee has a positive drug test). Federal contractors are still subject to federal drug-free workplace laws (which prohibit marijuana usage).
Employers will need clear policies with their employees as to what they expect. As always, Welch Law can assist you with this process if needed.