On Tuesday, Nov. 6, 2018, Michigan voters elected by a margin of 56% to 42% to have Michigan become the 10th state in the country to legalize recreational marijuana use. By mid-December, a Michigan resident will be able to grow their own marijuana plants and smoke marijuana in the comfort of their own home. But what does this mean for employers who want to guard against having employees under the influence of marijuana? Well, employers can still enforce their policies and fire an employee for having marijuana in their system, legally or not. Voters may have though that passing this law was license to smoke pot unfettered, but what many might not have known is legislators had already anticipated this and Section 3 of the proposed measure stated:
“This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer’s property,” the ballot proposal reads. “This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marijuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marijuana.”
In other words, employers can still insist upon pre-employment drug tests for prospective employees, and employers can decline to hire, and can fire or discipline a worker who tests positive for THC, the psychoactive ingredient in the cannabis plant that produces the “high” for the user. Currently, non-THC cannabinoid oil (also from the cannabis plant) has been used by people in the form of edibles, such as gummy bears, to treat anxiety and general body pain, but the THC is psychoactive and the reason marijuana is classified as a Schedule 1 narcotic.
Further, the federal government still considers marijuana an illegal substance and can choose to prosecute, though many believe the Feds will be “hands off” individual consumers in states where marijuana use is legal. The Feds may still crack down on illegal sellers of marijuana, however, as retail stores that sell marijuana will likely not be up and running until mid-2020.
As for case law in Michigan currently, this is subject to change over time, as Courts likely will rule along with the law that will be enacted shortly. Currently, though, an employee’s right to use marijuana is limited, even if they have a medical marijuana card. In the case of Joseph Casias v Wal-Mart, Mr. Casias, a medical marijuana cardholder who used cannabis to treat the pain caused by an inoperable brain tumor, was fired from his job as an inventory control manager at Wal-Mart because of a positive drug test. It was uncontroverted that Casias had never been high at work, and only smoked pot at night, but he was fired due to a positive drug test. Casias sued Wal-Mart under Michigan law, in which the Michigan Court of Appeals had previously held that an employer can’t disqualify a person from receiving unemployment benefits if they test positive for marijuana and that person holds a medical marijuana card. Unfortunately for Casias, the Sixth Circuit Court of Appeals ruled in favor of Wal-Mart in 2012, holding that Michigan’s medical marijuana law couldn’t dictate the actions of a private employer in terms of termination of employment. Casias is still good law in Michigan.
For now, if you are one who enjoys smoking marijuana and you feel that now that recreation use is legal in Michigan that you can do so with no potential implications to your job, think again. Until the case law eventually evolves, employers have the right to dictate whether or not employees can have marijuana in their systems.
James R. Acho is a partner in our Livonia office where he concentrates his practice on sports law, employment law, municipal and law enforcement defense and commercial litigation. He may be reached at (734) 261-2400 or firstname.lastname@example.org.