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Keeping Up With Cannabis in the Workplace in Michigan

February 20, 2020

By Michael Burns, courtesy of SBAM Approved Partner ASE

ASE is monitoring Michigan’s experience with recreational marijuana and its impact on the workplace. Though not providing too much in the way of new information a recent article provided by CCH Ideas and Trends puts a finer point on employer compliance responsibilities in states where recreational marijuana use is legal.

First, nothing has changed in Michigan from the standpoint of what employers can and cannot do. Employers may adopt a strict no substance abuse in the workplace policy. Marijuana use is illegal federally.

Many Michigan employers are now adopting policies that treat marijuana the same as alcohol use. A minority of employers that are in “some collaborative and creative workplaces” allow alcohol in the workplace and this arguably opens up the use of marijuana in those workplaces. Employers that open up their workplaces to alcohol or marijuana use have to understand they take on the responsibility of handling intoxicated or impaired employees.

A recent CCH article recommends employers keep in mind concerns about safety sensitive jobs that compel the adoption of a zero-tolerance policy for those positions.

Federal Contractors, those employers doing business with the federal government, are subject to the requirements of the Drug-Free Workplace Act. Employers covered by the Drug-Free Workplace Act must adopt required compliance policies and practices.

Unlike alcohol in the bloodstream that can be tested for, it is still not possible to measure the strength or amount of cannabis consumed. No test currently can tell you how impaired a person is using marijuana.

If a “progressive” employer chooses to dispense marijuana at work like they might do alcohol, they may be committing felonious possession with intent to distribute a Schedule I drug under federal law.

Lastly, OSHA law requires an employer to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” Even if an employer knowingly tolerates the use of an illegal and impairing drug (this includes for medical purposes also) and lets the employee perform hazardous tasks, this may be construed under OSHA as a breach of the law’s general duty clause. CCH reports it has not seen any citations issued under this part of the law.

ASE’s 2019 Quarterly Economic & Employment 3rd Quarter survey asked what changes Michigan employers have implemented in response to the new Michigan law. Almost a year out from the law’s passage,15% of employers responded that they were considering changing their drug testing policies. This was virtually unchanged from a year ago. Fifty-six (56%) reported they would not change their drug testing policies with 29% unsure of what they plan to do. Though the number of companies considering a change to their drug testing policies did not change. The number of those unsure went down by just under 20% and the number that state they made no change increased by over 14% indicating employers are more certain of what direction their policies and practices are going moving forward for this law’s passage.

Employers now report they are less concerned about the impact of the Michigan marijuana law with only 56% reporting they are either very concerned or somewhat concerned about the change. When asked last year just after passage of the law, 71% of employers registered themselves as either somewhat or very concerned – a 21% drop in anxiety over the impact of recreational marijuana’s impact on employers.

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