On Dec. 6, 2018, adult recreational cannabis consumption and possession became legal in Michigan. In the months since, we have seen signs of a welcome shift in the attitude of our state’s employers, even if it is not reflected in their formal policies. Here is a brief look at the history, and future, of workforce policies in Michigan as it relates to recreational cannabis consumption.
It is important to note that, legally speaking, virtually nothing has changed for employee rights. The use of cannabis, even by registered patients, enjoys no constitutional protection. Employers are free to lawfully discriminate in employment decisions against any person who consumes cannabis, and nothing in any of Michigan’s cannabis laws (the 2008 Michigan Medical Marihuana Act, the 2016 Medical Marihuana Facilities Licensing Act, or the 2018 Michigan Regulation and Taxation of Marihuana Act) does anything to increase protections in employment.
So, knowing that any business can not only fire, but can refuse to hire or promote, any employee merely because they consume cannabis on their own time, employers need to ask whether a zero tolerance policy is really the right policy anymore. Do Michigan companies really want to exclude that much of the workforce from their potential employment pool? Turns out, the answer is rapidly becoming “No.”
In its recent “Drug Testing and Marihuana Legalization Study,” The American Society of Employers reports that even though most employers are not changing their written workplace policies relating to drug use, 46 percent of employers responding to the survey indicated that they will no longer test for cannabis, and an additional 32 percent of employers will ignore a positive test for cannabis. In other words, a majority of employers will no longer make employment decisions based on a person’s private cannabis use. This is a significant and common-sense step in the right direction for Michigan businesses who understand that lawful cannabis use that does not impact a person’s employment should not affect a person’s employability. At last, it appears that Michigan companies are starting to view cannabis as the medicine and lawful recreational drug it is, and not the stereotype villain of the “War on Drugs.”
In addition to this positive and, hopefully, continuing trend in employer attitudes toward legal cannabis and cannabis consumers, those who were convicted of cannabis-related felonies can no longer be asked to disclose their convictions as part of pre-employment screening, thanks to former Gov. Richard Dale Snyder’s “ban the box” executive order. Before this year, employers could, and for the most part did, require felony disclosures on applications, meaning that Michigan residents who were convicted of felonies for their cannabis-related conduct during the arguably very confusing last decade were banned from gainful employment. Now, most employers cannot ask. In the kind of ironic twist that could only exist in Michigan, drug felons cannot work for any state-licensed cannabis business. If you have any other felony, you can work in the cannabis industry in Michigan. But if you have a cannabis-related felony, you can’t. Seriously.
“At last, it appears that Michigan companies are starting to view cannabis as the medicine and lawful recreational drug it is . . . ”
Of course, there will always be a need to determine if somebody is impaired while at work, and there will always be those jobs—bus driver, crane operator, educator, and the like—that require a zero tolerance policy and accurate testing. For these occupations, employers will have to move beyond traditional tests of the past and look to new and more accurate testing. The Michigan State Police recently wrapped up a year-long trial of saliva tests for roadside testing to include not just cannabis but more dangerous and illicit drugs like heroin. It is presumed that when these saliva tests are perfected, that their applications will transfer easily to the workplace.
In the meantime, a decade after the Medical Marihuana Act, Michigan is finally seeing cannabis find its sensible place in workplace drug policies.