Yesterday, November 6, 2018, Michigan voters approved recreational use of marijuana. The new law, called the Michigan Regulation and Taxation of Marihuana Act (MRTMA) allows adults 21 years of age or older to use and possess up to 2.5 ounces of marijuana and grow up to twelve marijuana plants in their residence for recreational use. It also authorizes state-licensed retailers to engage in the commercial sale of marijuana. The ballot initiative will go into effect ten days after the election results are certified, which will likely occur by early December.

Employers are likely wondering the extent to which they will have to tolerate marijuana in their workplaces under this new law. Contrary to popular rumor, the legalization of recreational marijuana will not fundamentally change the way Michigan employers operate their businesses. The MRTMA does not restrict a private employer's right to maintain and enforce a zero-tolerance drug and alcohol policy. Under the law, an employer does not have to permit or accommodate recreational marijuana use in any workplace or on the employer's property. Employers can continue to prohibit the possession, distribution, manufacture, and/or consumption of marijuana, in any form, at work.

Additionally, employers can continue to prohibit employees from coming to work under the influence of marijuana. Employers may also continue to drug test for marijuana, and if they choose to do so, employers can refuse to hire, can discipline, or can discharge a person who tests positive for marijuana, otherwise violates a workplace drug policy, or comes to work under the influence of marijuana.

What does this practically mean for employers?

If your employee shows up to work under the influence, you continue to have the right to discipline or terminate this employee. If an applicant or employee tests positive for marijuana, you continue to have the right to refuse to hire them or to terminate their employment.

Clearly, the real challenge for employers will be identifying employees who are working “under the influence” of marijuana. Unfortunately, the MRTMA does not define what "under the influence" means. Until Michigan passes additional laws or regulations, employers may find it helpful to review laws in states that have already permitted recreational marijuana use. For example, in Colorado, a person may be charged with impaired driving if their drug test reveals a THC level of 5 ng/ml. An employer should take into account drug test results, along with observable indications of impairment, before taking any adverse action against an employee who appears to be under the influence at work.

One cautionary note – employers should exercise caution before terminating, disciplining, or refusing to hire someone for their use of medical marijuana. In the last year, at least two state courts in Massachusetts and Connecticut have interpreted their state laws to prohibit adverse action against individuals who use medical marijuana due to a disability. Michigan courts have yet to interpret the applicability of Michigan's Persons with Disability Civil Rights Act to this issue, so it is still an open question in Michigan whether employers have a duty to accommodate medical marijuana usage under state law.