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Marijuana's legal in Michigan, but employers can drug test for it: What workers should know

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As more and more recreational marijuana dispensaries open around Michigan, and notably in big cities like Detroit, employers are increasingly confronted with questions about how to handle testing employees for cannabis.

Some Michigan employers began reexamining drug testing policies in 2008, when medical marijuana was legalized in Michigan, employment lawyers and staffing firm executives say. The movement to reexamine these policies gained momentum again in 2018, when recreational marijuana was legalized, and again in recent years, as employers have struggled to hire.

One recent example: Last week, the Detroit Free Press reported that the state of Michigan rejected 151 job applicants last year who had already received conditional offers of employment, after they tested positive for marijuana, according to the Office of State Employer, even as it faced a hiring crunch. That's more than triple the 49 failed marijuana tests in 2018, the last year recreational marijuana was illegal under state law, and it's also more than double the 71 failed marijuana tests resulting from the state hiring process in 2021.

Other companies and states around the country are grappling with an increase in positive tests for marijuana.

Marijuana positivity surged in 2020 in the general U.S. workforce, according to the most recent data available from Quest Diagnostics, a New Jersey-based company that analyzes millions of workplace drug tests every year. In states where recreational marijuana is legal, marijuana positivity increased by the largest percentage compared with other states, from 2.2% in 2012 to 4.8% in 2020.

"It's a real balancing act for my clients in a tight labor market to recruit and retain the workers while still maintaining drug policies that are consistent with a patchwork of state and local testing laws and still have a safe workplace," Brian Kreucher, a labor and employment attorney at the Royal Oak-based law firm Howard & Howard Attorneys PLLC, said.

The Detroit Free Press talked with Kreucher about how employers are approaching testing for marijuana, and what that means for job seekers and workers.

This interview has been edited for length and clarity.

QUESTION: Are employers dropping marijuana from the pre-employment drug testing screening? (Employers typically screen for amphetamines, cocaine, marijuana, phencyclidine and opiates.)

ANSWER: I've got some clients that have dropped it. Other clients tell me, 'Nope, we're not having any difficulties. We're maintaining our policy, that positive (THC) test results for applicants are a disqualifying factor.' But others have dropped it because they have a work environment that might have fewer workplace safety concerns than a manufacturing facility, for example, where employees are around heavy equipment.

Suppose it's a manufacturing facility, where employees are around robots and dangerous heavy equipment. In that case, employers are probably more reluctant to drop marijuana from the panel because of the severe consequences of losing a limb or a life in a manufacturing facility.

Q: Given that marijuana is legal for recreational use in Michigan, can an employer discipline or fire an employee if they test positive for marijuana on a drug screening?

A: The law is still such that no employer needs to accommodate even medical marijuana use in the workplace. They can discipline and fire employees if they are using while on duty or are impaired or under the influence while at work. THC (the main psychoactive compound in cannabis) remains in the system for an extended period of time. We don't currently have any available testing that accurately would indicate a level of intoxication at a particular time.

So employers might have an employee who tests positive for marijuana in a post-accident drug test. Is that enough to fire that employee in Michigan? It would be. But employers really need to focus on the behavior and train their supervisors to recognize the signs of being under the influence of marijuana.

Once in a while, employers will have the person caught on video vaping, for example, or a coworker witnessing the act. But by and large, they're not going to have that kind of smoking-gun evidence. So then it's going to be incumbent on the employer's supervisors to be able to identify, 'Well, why do we think this person is impaired?' It's good to have objective evidence of slurred speech or glazed eyes, for example.

Q: President Joe Biden announced in October that he would ask the departments of Justice, and Health and Human Services to review how marijuana should be scheduled under federal law. Currently, marijuana is considered a Schedule 1 substance, meaning it has a high potential for abuse or no currently accepted medical use in treatment in the U.S. If marijuana is scheduled differently, how could that change drug testing?

A: Employers, at the point marijuana is rescheduled or descheduled, would want to take a close look at their drug policies. Many drug testing policies currently have a provision that says employers can take adverse employment action for illegal drug use under either state or federal law.

The federal law has been the caveat that many employers keep in their drug testing policies because it's still a Schedule 1 drug. Now, if that's dropped, their policies would have to be revised.

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