Michigan became the 10th state to legalize recreational marijuana use for adults over the age of 21. Anything in public places remains illegal. Smoking in a driveway or front porch is off limits, but a backyard may be okay unless a neighbor takes offense and files a nuisance complaint.
For the most part, the answer is yes, an employer still has the right to enforce zero tolerance policies and refuse to hire or fire workers who test positive. Nuances could exist however and judges will need to decide cases that fall within gray areas – potentially related to edibles or unsupported accusations of marijuana use/impairment on the job.
Safety sensitive and federal contracts
For those who work in “safety sensitive” roles, utility line workers or over-the-road truck drivers’ random tests and pre-employment testing will remain. Federal law still considers marijuana an illegal drug, so companies with federal contracts can still take a firm line.
Because marijuana stays in the system much longer than alcohol, it is crucial to learn what types of drug testing requirements exist at your potential new or existing employer. Companies should be transparent in their policies and include whether off-the-clock marijuana use could affect employment.
New policies may be coming
An employer may also implement a policy that prevents employees from drinking or getting high while on the job. For a practical matter, how will an employer know a brownie or baked treat contains infused butter? Getting high is not only smoking a joint anymore, so policies may include details that employees cannot have an edible with lunch and then return to work.
And on a related front, employers can also fire/not hire someone who fails a drug test even if he or she has a medical marijuana card in Michigan. We wrote about a case on the topic in our July 2018 post. Yet subsequent cases is other states have come to opposite conclusions, which indicates that this area may not be as black and white as some would argue.
Casias v. Wal-Mart Controversy struck when Joseph Casias was fired from Wal-Mart in 2009 for failing his drug test. The employer was sued for firing Casias, who had a prescription for medical marijuana to help with his sinus and brain cancer. The U.S. District Court judge and the Sixth Circuit Courts of Appeals both sided with the employer and upheld the termination.
As an “at-will” employment state, Michigan allows companies to fire people for any reason without a “just cause” claim. A case in 2014 seemed to challenge Casias’ case. The Michigan Court of Appeals ruled that three people fired for using medical marijuana could not be denied unemployment benefits. The court didn’t say that the actual firings were unfair.
It seems strange to have a medical marijuana law in place but allow termination for using cannabis. Michigan is not the only state where this is an issue. Many states do not have protections in place for those carrying a medical marijuana card.
As employers start to look for changes in performance or indications of intoxication there will inevitably be mistakes and unfounded accusations. Sometimes, a marijuana-related claim might even be used to disguise a racially-motivated or other inappropriate adverse employment action.
If concerns exist about manager conduct or corporate culture exist, speak with an experienced employment attorney to learn if any remedies are available.