Rev January 28, 2020
Now that Michigan has passed laws making Marijuana legal, we are all looking to the state courts to help us define what that means.
Here a few things that we do know:
Marijuana is still illegal under federal law.
The Michigan Court of Appeals has ruled that this law and the Medical Marijuana Laws have NOT created a new protected class. This means that you do not need to provide accomodation under ADA for individuals with Medical Marijuana cards
You are still allowed to ban the possession, sale or use of marijuana at the workplace. The difficult issues is terminating or denying employment for having marijuana in your system. There are currently no tests to determine if you could be considered legally impaired, such as we have for alcohol. The courts have not had an opportunity to rule on this.
Many of you may have a clause in your employee handbook or policies that states that you ban the use, possession or sale of alcohol or illegal drugs on site. Marijuana may not be considered to fall under of these catagories. I would just change the language to “alcohol, marijuana or illegal drugs”.
My recommendation to clients is to still require drug tests because these will also test for other drugs which are still illegal under both federal and state laws.Ask your drug test provider to provide you a test without testing for marijuana. I am not aware that anyone is doing this now, but if enough request come to them, they may comply.
If you see an individual who appears to be impaired (slurred speech, stumbling etc.) you are well within your rights to require a drug test. I would request that another member of your management team also observe that individuals behavior. If the test comes back as positive for any drug, including marijuana, you are allowed to terminate that individual.
BTW – Do NOT send home driving their own car. If they get in any accident, and you have established that they are impaired, you may be culpable.
This is another evolving situation. Stay tuned for more updates