Over the past few years, Employers Council has reported on the state-by-state trend of cannabis decriminalization, from its origins in the realm of “medical marijuana” to the current trend of allowing recreational use of cannabis products in some states. Following this trend is of particular significance to employers who maintain drug testing policies and workers in several states, as the laws on cannabis use vary. Please see our brief primer on the newest states to join the trend of cannabis decriminalization, whether medical or recreational.
The legalization of recreational cannabis has now also made its way to the Midwest. On November 6, 2018, Michigan voters approved Proposal 1, also known as the “Michigan Regulation and Taxation of Marihuana Act,” permitting adults 21 and older (either living in or visiting the state) to purchase, grow, possess, and use marijuana for recreational purposes. Michigan joins nine other states and Washington D.C. in legalizing recreational cannabis products. Recreational cannabis products are currently legal in the following states: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington. North Dakota voters also saw a recreational cannabis proposal on the mid-term ballot but such proposal ultimately failed to pass, although North Dakota does permit the use of medical cannabis.
Michiganders and employers doing business in Michigan can expect certain portions of the new law to be effective as early as December 6, 2018. What does this mean for employers who operate within the state of Michigan? Importantly, the new law does not affect an employer’s ability to terminate employees for a positive marijuana drug test, even if the employee has a medical marijuana card. Neither Proposal 1 nor Michigan’s existing marijuana laws change the rules regarding employment and drug testing.
Proposal 1 provides that employers are:
- Not required to “permit or accommodate” marijuana use or possession “in any workplace or on the employer’s property;”
- Permitted to “disciplin[e] an employee for violation of a workplace drug policy or from working while under the influence of marijuana;” and
- Permitted to “refus[e] to hire, discharg[e], disciplin[e], or otherwise tak[e] 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 workplace drug policy or because that person was working while under the influence of marihuana.”
You can find the entire Act here.
In Missouri, Amendment 2 was passed by voters, thus permitting the use of medical cannabis products in the state for individuals who have a registry card. The Missouri law is similar to the laws of states like Michigan, Colorado, and California, in that it does not grant an exception from an employers’ drug testing policies. In other words, employers in Missouri do not have to accommodate the use of medical cannabis, even for a disability-related purpose, in their workplaces.
Further, Missouri’s law includes an additional protection for employers in that state, in that it specifically disallows anyone from filing wrongful discharge, discrimination, or similar types of claims against Missouri employers based on a prohibition against working under the influence of cannabis. For that reason, Missouri-based employers who wish to curtail cannabis use in the workplace should ensure that they maintain an explicit policy that prohibits working under the influence.
Utah residents voted to decriminalize medical cannabis as well by passing Proposition 2. This law works similarly to other medical cannabis laws in that it establishes a registry, sets requirements for individuals with medical conditions to obtain a registry card, and continues the prohibition on recreational cannabis products and use.
However, certain terms of the law continue to be unclear as it is now in the hands of the state legislature to implement the measure. The state legislature is scheduled to discuss a new version of the law today, November 26. Employers Council will continue to keep Utah employers updated on the state of the new law and its implications for employers as more information becomes available.
Unfortunately for employers, despite provisions in the new law that allow for prohibitions against impairment in the workplace, it continues to be difficult to establish whether an employee is under the influence of cannabis products given that there is no scientifically validated test to accomplish this objective. Thus, in-house expertise with respect to reasonable suspicion determinations and testing are more important than ever.
If you have any questions about reasonable suspicion or drug testing, please contact your Employers Council representative. Further, Employers Council will host a webinar on reasonable suspicion best practices in early 2019 to assist employers in developing their own procedures in spotting impairment at work.