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Marijuana is legalized in Michigan – how will it affect workplace drug testing?

November 8, 2018

By Susan Chance, courtesy SBAM Approved Partner ASE

The people of the State of Michigan passed Proposal 18-1, also known as Proposal 1 or Prop 1, legalizing the recreational use of marijuana. Below are answers to some of the questions employers may have around the legalization of marijuana and drug testing in the workplace.

Some of those questions are:
Should I continue with drug testing? 
If I don’t currently have a drug testing program, should I start one?
What if we don’t want to accept marijuana although it is legalized?

According to Quest, drug testing should still be implemented in the work place; some of the reasons are:
1.     Drug testing helps to maintain a safer work environment. In additional to reducing the potential for illegal activity, a drug testing policy assists in reducing work related accidents. 

2.     When clients/consumers know you have a drug testing policy, it can enhance your company image. This is especially important in the areas of safety and quality of products. 

3.     Some companies must have drug testing programs to comply with Federal laws, especially for safety-sensitive positions. Even if local and state laws allow marijuana use, it is still illegal at the Federal level.

4.     A good, enforced drug testing program can help companies save on workers’ compensation costs and can save additional costs by preventing workplace accidents. If you have an employee who uses or misuses drugs, legal or not, they have the potential to cause harm to others as well as themselves. Lawsuits can be very costly to employers, especially if the risk could have been minimized through drug testing.

5.     Drug use contributes to lower productivity, higher absence and tardy rates, and employee turnover. With a good drug testing program, these issues can be reduced.

Point number 3 above reminds us that federal laws supersede state laws, per Article VI of the U.S. Constitution. The state of Maine; however, has recently added a provision to their recreational marijuana law that prohibits adverse actions against employees for using marijuana outside of work, which went into effect February 1, 2018 even though Marijuana use is still against federal law.

While you may consider doing away with your current drug testing program due to the legalization of marijuana, remember that marijuana isn’t the only drug for which you are testing.  Among those other drugs are opioids, and we are still in the midst of an opioid crisis.

If you start a new drug testing program there are very few exceptions to the legality of private employers requiring applicants to pass a pre-employment drug test. If you want to test current employees, there are limitations in many states as to the circumstances under which you may require those employees to pass a drug test such as:

  • Reasonable suspicion

  • Post-accident

  • Employee is currently in or has just completed a drug rehabilitation program

  • Laws are constantly being reviewed and updated.  Drug testing is important; just make sure that you are familiar with the laws and regulations where you do business and check with your legal counsel before starting or changing your drug testing program.

ASE will hold a Hot Button Briefing on Friday, November 16, 9:00 a.m.-11:00 a.m.  Register here.

Additional Resources
ASE Drug Screening – As part of SBAM member benefits, you have access to Pre-Employment Services, including drug screening. Learn more.

ASE Handbook Development- If you would like your current drug testing policy reviewed, revised, or a new policy created ASE can help.  Learn more.

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