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With Legalized Marijuana, Has Your Organization Rethought Its Drug Testing Policies?

August 19, 2021

By Michael Burns, courtesy of SBAM Approved Partner ASE

ASE continues to get member inquiries about substance abuse testing and policies. A recent article by the Washington Examiner says interest in relaxing strict employer policies against employee marijuana use is going on across the country.  Where marijuana is legal recreationally, such as in Michigan, employers are asking whether it’s worth continuing pre-employment and other testing for marijuana use. Amazon has eliminated marijuana from its drug testing and is treating marijuana use the same as alcohol.

Currently there are 37 states plus the District of Columbia that have legalized marijuana for medicinal use and there are 18 states that have legalized it for recreational use.

This relaxation of marijuana use policy and testing depends upon the business. Certain industries such as construction or heavy manufacturing as well as federal government contractors are maintaining strict drug free workplace policies. This too may change. Congress is contemplating legislation that will lift the federal prohibition of marijuana. No less than Senate Majority Leader Chuck Schumer is behind this federal legislative initiative to catch up to the many states that have changed their marijuana laws. Currently marijuana is listed as a Schedule 1 drug by the federal government – the same as LSD, heroin, and other narcotics.

But outside of those industries that are high risk or under federal compliance laws, other employers, particularly because of the current labor shortage, are loosening their substance abuse policies to ignore the recreational, off-hours use of marijuana. They are making it clear to employees; however, that being under the influence at work will be dealt with the same as being intoxicated while at work. Currently, employers looking for qualified candidates are losing them. When asked to have a drug they often either cannot pass the test or “get lost” on their way to the testing facility.

Michigan law does not protect workers from employer policies in either case. Employees that come to work under the influence or test positive for marijuana use do not have to be hired and can be fired for testing positive. 

An ASE EPTW poll conducted in June of this year asked our members if they still include testing for marijuana in their drug tests. 23.3% responded that they no longer include marijuana when drug testing.

This will no doubt gain steam for many employers as recreational marijuana use becomes more accepted by employers and society at large.

The test for marijuana use does not measure whether a person is under the influence like an alcohol test does. The existing marijuana tests measure whether a certain metabolite is present in the person’s bloodstream. The metabolite is there because of the THC (psycho-active drug in marijuana) and does not provide any insight as to whether the level of THC in the person is currently “high” or the person can be considered under the influence. This is why some employers are asking why they would want to test absent a strict no-marijuana use policy.

In the meantime, various state legislatures are working to extend protections around marijuana users even in the workplace. Just this month Michigan Attorney General Dana Nessel filed a brief with the Michigan Unemployment Insurance Appeals Commission arguing that unemployment benefits should be extended to persons fired due to off-hours marijuana use. She argues that although under current Michigan law, employees can be denied unemployment benefits after being fired for intoxication, that it is different than a worker being fired for off-hours marijuana use.

Under current Michigan law an individual can be disqualified from UI benefits if they lose their job because of a positive drug test. AG Nessel; however, states that today’s marijuana tests are not in fact a “drug test” under the law’s current definition because marijuana in not an illegal drug anymore in Michigan. Employers will be paying their UI taxes to support someone they fired for what can be considered a safety rules violation.

If you are a multi-state employer, be aware that different states may have different legislative protections in place. That said, no state law anywhere so far requires employers to tolerate marijuana use at the workplace or employees that work under the influence of marijuana.

Zero tolerance drug policies can be practiced if employers are mandated to perform drug testing by federal law or regulation or if the job is a safety sensitive position.

In states that legalize marijuana and do not contain anti-discrimination or accommodation mandates for medical or recreational use of marijuana (Michigan falls into this category) employers can deny accommodations to employees that use medicinal marijuana.

For more information about substance abuse and drug testing policies contact ASE’s Research Department at (248) 353-4500.

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