Employees Can Now Legally Inhale… Zero Tolerance Policies Are Safe, But Can Employers Really Exhale?

On the heels of record midterm voter turnout, Michigan voters approved Proposal 1, the Michigan Regulation and Taxation of Marihuana Act (the “Act”), which legalizes the recreational use, sale and possession of small amounts of marijuana by individuals 21 years of age and older. The law is set to take effect later this year.

As with similar laws passed in other states, the Act includes major protections for the rights of Michigan employers.  Specifically, the Act:

• Does not require an employer to permit conduct otherwise allowed under the Act (for example, employers can still ban the use and possession of marijuana in the workplace or on the employer's property).
• Does not prohibit an employer from disciplining an employee for violations of a workplace drug policy or for working while under the influence of marijuana.
• Does not prevent an employer from refusing to hire, discharging, or otherwise taking adverse action against a person for violations of workplace drug policies or for working while under the influence of marijuana.

In other words, despite the legalization of marijuana under state law, employers may continue to enforce their drug policies, require drug tests, and take action relative to the use of, or testing positive for, marijuana.  Additionally, in some circumstances, employers will still be legally required to prohibit marijuana use.  For instance, many state and federal contracts and regulations require employers to maintain drug-free workplaces and to complete employee drug testing. 

Nevertheless, given the current low unemployment rate and shrinking available candidate pools in many industries, the legalization of marijuana may lead to employment issues.  Some employers may choose to revisit their drug testing policies and procedures to avoid losing out on otherwise qualified job candidates who engage in the recreational marijuana use outside of work.  Indeed, some employers have already excluded marijuana from pre-employment and random drug testing, have decided to test for marijuana only on reasonable suspicion, or have implemented a zero-impairment policy (which targets an employee’s conduct, not a specific substance).

There is no one-size-fits all answer.  In light of Michigan’s new openness to marijuana use, employers statewide may want to consult with their legal counsel to examine the Act’s potential impact on their own hiring needs, workforce dynamics, and existing policies.