Michigan Brings Legalized Recreational Marijuana to the Midwest

Foley & Lardner LLP

Last month, Michigan became the 10th state, and the first in the Midwest, to legalize the recreational use of marijuana. The new statue, which became effective on December 6, 2018, is known as the Michigan Regulation and Taxation of Marijuana Act (“the Act”). Part of the Act’s stated intent is to decriminalize the personal possession and cultivation of marijuana by adults 21 years of age or older. The Act, among other things, allows individuals age 21 and older to possess or use up to 2.5 ounces of marijuana, and to possess and store not more than 10 ounces in their residence. Notably, the Act does not authorize the consumption or smoking of marijuana in public places.

The natural question for many Michigan employers is how, if at all, does the Act impact drug-free workplace policies? Can an employer deny employment to someone who fails a pre-employment drug test, or discipline an employee who tests positive for or is under the influence of marijuana in violation of company policy? Under the Act, an employer can still enforce a zero-tolerance/drug-free workplace policy, which typically prohibits the use, possession or being under the influence of drugs (including marijuana – still illegal under federal law) while at work or on company business.

The Act specifically addresses the employer-employee relationship and states that it:

  • Does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer’s property
  • 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
  • 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

Companies with employees in Michigan should consider updating or reissuing their drug-free workplace policies to help clarify any potential uncertainty and ensure employees are fully aware of the continued application and enforceability of such policies. And, given the continuing trend of state legalization of recreational marijuana use, all employers should review their policies and procedures to ensure compliance in the jurisdictions in which they have operations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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