The Michigan Regulation and Taxation of Marihuana Act (MRTMA) was approved by voters in the Nov. 6 general election. Under the law, adults age 21 and up may possess as much as 2.5 ounces of marijuana. They also may keep up to 12 marijuana plants at their residences. One unintended result of the law is confusion among employers who, for now, must step gingerly around the stones of workplace rights. While the new law does not markedly change the level to which employers must tolerate the use of recreational marijuana by employees, the water has become murky regarding the use of medical marijuana.
Among the issues with which employers are grappling is just what constitutes being under the influence, and what should they do when confronted with marijuana consumption on the part of an employee using it to alleviate symptoms of a disability?
In 2016, a New Jersey man diagnosed with cancer was injured in a work-related car accident. At the emergency room, he disclosed his use of medical marijuana to hospital staff. Even though he was found not at fault in the accident, the hospital disclosed his cannabis use to his employer, who ordered him to take a drug test and subsequently fired him.
The bigger picture was more complicated, however, because of New Jersey’s anti-discrimination law, which requires reasonable accommodations for individuals seeking use of medicinal marijuana. Arguments were made that the ability to use medical marijuana in the employee’s off hours at home constitutes a reasonable accommodation.
Last March, a New Jersey state appeals court reviewed the man’s case and ruled that New Jersey workers cannot be fired for medicinal marijuana use. Equally confusing is what constitutes an employee being “under the influence,” and employers have been urged to watch for observable indicators before taking action.
NJ.com quoted attorney Maxine “Mickey” Neuhauser, co-author of an analysis of the state’s decision: “Think about it as you would for a prescription for Vicodin or Xanax or Ambien. You might need to go through the reasonable accommodation analysis for those individuals if you became aware of their use. You have to focus on the employee’s conduct.”
She also stressed that for those with disabilities, it’s imperative that employers act on a case-by-case basis.
“Under Michigan’s recreational marijuana laws, employers can continue to prohibit or restrict marijuana use in any way they choose,” said Stephen Sinas of Sinas Dramis Law Firm in Lansing. “The reality, however, is that employers may encounter more people in the workforce who, at least to some extent, use marijuana. Therefore, as a practical matter, employers may have to reconsider the specific restrictions or prohibitions they have with regard to marijuana use. It may make sense for employers to implement restrictions based more around when marijuana use directly impairs a person’s ability to safely and effectively perform his or her job, rather than simply around whether a person has traceable marijuana in his or her system.”
David Harns, a spokesperson for the Michigan Department of Licensing and Regulatory Affairs, said the Marijuana Regulatory Agency “doesn’t have any say in how the changes in the laws impact employers regarding their responsibilities when it comes to drug-testing employees.”
As with any sweeping change in laws affecting the workplace, it might take a while for all involved to grasp every nuance impacting them when it comes to marijuana use, both recreationally and medicinally.