Working out questions on marijuana and the workplace

By: Terry Oparka | Troy Times | Published February 12, 2019

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TROY — A majority of Michigan voters approved the legalization of recreational marijuana for those ages 21 and older, but what will that mean in the workplace?

The proposal allows people 21 or older to purchase, possess and use marijuana and marijuana-infused edibles, and to grow up to 12 marijuana plants for personal consumption.

Regulations and licensing for retailers should be in place to allow for the purchase of pot for recreational use by the end of this year.

James E. Baiers — the chief legal officer of the Troy-based Trion Solutions Inc., which manages the human resources administration for approximately 150 small- to midsize businesses in Michigan and 450 companies across the United States — spoke with Trion COO Craig Vanderburg on issues facing employers and employees at a program hosted by the Auburn Hills Chamber of Commerce Feb. 7.

Baiers said he planned to talk about the steps that businesses should take to revise company policies regarding drug and alcohol testing if the owner, occupier or manager of the property wishes to prohibit the use or consumption of marijuana.

Driving under the influence of pot, and consuming it or using it on public and some private property — including hotels, businesses and office buildings — remain illegal.

Baiers explained that employee testing is threefold: pre-employment testing; reasonable suspicion testing if behavior or other signs indicate that someone may be under the influence, if that’s in the company policy; and random drug testing.

In the latter case, companies need to institute policies to ensure that testing is uniformly enforced — “truly random” and not used selectively or to discriminate against someone, Baiers said.

“One of the issues, unlike alcohol, is that a positive result will not necessarily reveal if someone is under THC (tetrahydrocannabinol, the active ingredient in marijuana) influence at the time,” Baiers said.

He noted that marijuana could have been ingested or consumed two or three days prior and still show up in a urinalysis, even though the person would no longer be under the influence.

“With marijuana, we don’t have such a (definitive) test at this point,” he said.

Troy Police Sgt. Meghan Lehman explained that officers initially identify those driving under the influence through field sobriety tests, the driver’s response to police questions and odor.

“They tell us what substance they are on,” she said.

After an arrest, Lehman said, drug recognition experts perform evaluations, then draw blood, if necessary.

Baiers said supervisors and managers will likely be trained to recognize the signs that someone is under the influence of cannabis or THC.

“In no way, shape or form should an employer allow someone under the influence in the workplace,” Vanderburg said, adding that a zero-tolerance, drug-free policy is best “until we understand what the impact is.”

 

Changing workforce
Vanderburg said employers recognize that “the millennial workforce, brought up with the evolutionary use of marijuana and societal acceptance, think there is nothing wrong with marijuana.”

“That’s another challenge for a robust economy across the U.S. and in Michigan, with 4 percent unemployment, and employers looking for talent in a tight labor market,” Vanderburg added. “Younger workers are now using recreational marijuana. We need to revisit employee handbooks and determine, ‘Have we properly addressed it?’”

“Employers are not required to accommodate employees that are medical marijuana patients or recreational marijuana users,” Jeffrey Schroder, an attorney for Plunkett Cooney who represents the marijuana industry and is a past assistant state attorney general, said via email.

“Employees and potential employees should be aware of any workplace drug policy,” he said. “An employer can refuse to hire a marijuana user. An employer can fire or discipline employees if they violate the workplace drug policy or if they are working under the influence of marijuana. Employers can require drug tests and screen for marijuana and terminate or discipline the employee for failing the drug test.

“We already have a Michigan example from 2009,” he said, noting Casias v. Wal-Mart Stores in the U.S. Court of Appeals for the 6th Circuit. “There was a federal court case involving a Walmart employee in Battle Creek who tested positive for marijuana. He was fired and brought a federal action against Walmart for wrongful discharge, claiming he had a right to use medical marijuana under state law. The federal court held that the protections in state law for using medical marijuana do not extend to private employment.”

“First and foremost, driving under the influence of marijuana is illegal,” Lehman said. “We’ve already had arrests for driving under the influence of marijuana. There’s a misconception that marijuana doesn’t affect driving.

“We want kids to understand that it’s illegal for anyone under age 21,” she added.

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