Legalizing marijuana in Michigan won’t let employees off the hook

Even if voters choose to legalize marijuana for recreational use, employers can still fire or decline to hire someone who tests positive.

Detroit Free Press

If voters decide in November to legalize marijuana for recreational use, pot-smoking job seekers and employees beware.

Legalization will not protect job applicants or employees who test positive for marijuana use on pre-employment drug tests or random workplace drug testing. Yes, you can still get fired or not be hired for a positive test.

The language in the five-page legalization proposal is clear: “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. 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.”

For employers who have federal contracts or whose employees are licensed through federal agencies, there is no gray area. The federal government considers marijuana an illegal substance and thus a zero-tolerance drug policy applies.

More: Roadside drug testing begins in 5 Michigan counties[1]

More: Voters will decide marijuana legalization after Legislature fails to act[2]

Other companies adopt those policies regardless of their relationship with the federal government.

Consumers Energy drug tests all of its employees, both those who work on utility lines and those in company headquarters and will continue to do so even if voters approve legalizing marijuana in Michigan, officials said.

“(The) safety of our employees and the community is the top priority for Consumers Energy given the extremely hazardous nature of electricity and natural gas in our daily operations,” said Katie Carey, spokeswoman for the utility. “At Consumers Energy, we strictly prohibit the use of unauthorized drugs by all employees, including marijuana. Additionally, our company requires drug and alcohol testing in compliance with fed­eral, state and company policies. Even if the voters approve the recreational use of marijuana in Michigan, our company’s current drug policy will remain in place.”

Likewise, at Ford and Fiat Chrysler, drug testing of all job applicants will continue regardless of Michigan’s law regarding medical marijuana or if recreational use passes on Nov. 6.

“FCA US policy on the use of marijuana by new hires has not changed for both salaried and hourly candidates,” FCA US said in a statement to the Free Press. “A positive test for marijuana use will disqualify a candidate. If a candidate is a prescribed user of medical marijuana, the case will be referred to a medical officer for further consideration.”

In California, where recreational marijuana became legal on Jan. 1, Los Angeles labor law attorney Michelle Lee Flores said people were emboldened by the new law.

“The first four months of it being legal in California, there was a lot of a sense of empowerment from people, saying ‘It’s legal, you can’t do anything to me.’ But there’s a lot of misinformation out there,” said Lee Flores, who works for the Akerman law firm. “It’s not a get out of jail free card.” 

But case law is evolving and employers, faced with a talent pool that may not be able to pass a drug test, are sometimes looking the other way when it comes to pot. According to the National Survey on Drug Use and Health, done for the U.S. Department of Health and Human Services, 24 million Americans ages 12 and over were users of marijuana in 2016, the last year available.

There are 31 states, including Michigan, and the District of Columbia where medical marijuana is legal; in nine of those states and the district, adult recreational use of weed is also legal. And in addition to Michigan and North Dakota, where voters will consider legalization questions in November, the New Jersey Legislature is expected to act on legalization this year and Missouri and Utah voters will decide a medical marijuana ballot question.

That leaves employers having to navigate an ever-changing environment surrounding marijuana.

The Coalition to Regulate Marijuana Like Alcohol, which spearheaded the Michigan ballot proposal petition drive, met with the Michigan Chamber of Commerce while drafting the language of the proposal, said Josh Hovey, spokesman for the Coalition.

“We wanted to make sure the language was meeting business needs,” he said. “We appreciated their input and included it in the language. But this is an issue that employers are going to have to deal with whether we legalize marijuana or not.”

Despite the meeting, the Michigan Chamber of Commerce does not support the ballot proposal, although the organization hasn’t decided how involved it will become in the campaign to oppose legalization.

“Our focus is not on the social issue, our opposition has to do with the fact that it will have a great impact on the workplace,” said Wendy Block, director of health policy and human resources at the chamber. “The (testing) science hasn’t caught up to public policy. Michigan is on the edge of being an early adopter. We’d rather wait to learn the lessons from other states.” 

Case law is mixed on an employee’s right to use marijuana, even if the person has a medical marijuana card. In the case of Joseph Casias, a medical marijuana cardholder from Battle Creek who used cannabis to treat the symptoms of sinus cancer and an inoperable brain tumor, his job as an inventory control manager at Walmart was lost because of a positive drug test after he suffered a workplace injury in 2009.

He was fired, even though he wasn’t high at work and never used marijuana while working. Casias sued, but the U.S. Court of Appeals ruled in favor of Walmart in 2012, saying that the state’s medical marijuana law couldn’t dictate the actions of a private employer.

“He lost that case, unfortunately,” said Dan Korobkin, one of the American Civil Liberties Union of Michigan attorneys who represented Casias. “But if employers continue to fire employees who don’t engage in any misconduct at work but are simply marijuana users, I’m sure we’ll see other lawsuits to figure out whether marijuana legalization law protects those employees.”

The Michigan Court of Appeals ruled in a separate case, however, that an employer can’t disqualify a person from receiving unemployment benefits if the person tests positive for marijuana while holding a medical marijuana card. That employee can be disqualified from receiving benefits only if they use marijuana at work, are under the influence of marijuana at work or can’t demonstrate that they are a medical marijuana patient.

Employers are facing a Catch-22, wanting to maintain a drug-free workplace, while looking to hire people from a pool of talent where many can’t pass a drug test. It’s especially difficult in manufacturing, transportation and utility work where zero tolerance is the norm.

Michael Johnston, vice president of government affairs for the Michigan Manufacturing Association, said it has become a major impediment to economic growth in the state.

“Employers have a threshold for job applicants: Do they have a driver’s license, a GED and can they pass a drug test, and a majority of them can’t pass a drug test and marijuana is a big part of that,” he said. “Companies have a real obligation to the workers, themselves and the people around them for safety. They’re responsible for injuries at work. One of the biggest challenges is the ability to find talent and the people with the right skill sets. This exacerbates the economic problems for manufacturers.”

Unlike alcohol, where Breathalyzer tests can show the exact level in a person’s blood, there are few available tests that show the level of impairment for marijuana. Saliva swabs and urine samples only show if THC, the psychoactive component in marijuana, has been used over the last few days, said Dr. Barry Sample, of Quest Diagnostics, a New Jersey company that analyzes millions of workplace drug tests every year, not a person’s level of impairment at the time of a test. Tests of hair samples will show THC levels going back as long as 90 days. 

“None of these specimens that are commonly used in workforce drug testing will tell you anything about usage or impairment or for when they last used marijuana,” Sample said.

According to an annual study done by Quest, positive marijuana tests have been rising for the last five years, especially in states that have legalized marijuana for recreational use. In 2013, 2.1 percent of the more than 10 million drug tests were positive for marijuana in the general workforce in the United States. By 2017, that number rose to 2.6 percent, the highest number for any of the list of drugs included in the testing protocol, which covers everything from amphetamines to cocaine to opiates. In Michigan, the overall rate of positive drug tests for all the drugs was 4.8 percent, compared with 4.2 percent nationally.

Blood tests are able to pinpoint impairment levels more precisely and the State Patrol in Colorado, the first state to legalize pot for recreational use, draws blood if officers suspect a driver is under the influence of marijuana. But blood tests are more expensive, take longer to analyze and generally aren’t used by employers who test their employees or applicants, Sample said.

There has been a shift in attitudes for some employers who aren’t hiring people for safety-sensitive jobs. Labor law attorney Lee Flores said in some cases, there’s a “wink, wink, nudge, nudge” by employers who warn job applicants about drug testing policies so that they can “get straight” before a test is administered.

And that is borne out by Quest’s statistics, too. In some states where recreational marijuana has been legalized, a growing number of companies are asking the lab to test for all drugs except marijuana, Sample said. In Nevada, which legalized weed in 2017, the number of companies that asked for marijuana to be included in workplace drug testing dropped from 95 percent in 2016 to 91 percent in 2017.

And anecdotally, the Michigan Chamber’s Block said that’s beginning to happen in Michigan, too.

“If you’re employing workers in safety-sensitive positions, it’s zero tolerance. Drug testing is going to be mandatory and that’s not going to change,” she said. “But we’re hearing of some companies who are changing their testing protocols because of the talent market, because they’ve been unable to find employees who can pass drug tests.”

And that would be a positive development, said Matthew Abel, director of the Michigan chapter of the National Organization for the Reform of Marijuana Laws or NORML.

“I understand the concerns about dangerous occupations, but short of that, I think employers should take a more tolerant view,” he said. “It’s shortsighted to eliminate those people because you’re eliminating a lot of creative, motivated people from your candidate pool.”

Kathleen Gray covers the marijuana industry for the Detroit Free Press. Contact her at: 313-223-4430, or on Twitter @michpoligal.[3]

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