Medical Marijuana In the Workplace: What Michigan Workers and Employers Need to Know
Today's post was authored by FHWN attorney Michelle D. Bayer
Effective December 4, 2008, Michigan joined 12 other states who have legalized medical marijuana. The Michigan Medical Marihuana Act (“MMA”), MCLA 333.26421 et seq., legalizes the use of medical marijuana to alleviate the pain, nausea and other medical symptoms caused by specific enumerated medical conditions. (Note: The Michigan statute spelling of “marihuana” is different from the mainstream spelling.) After the MMA was passed in 2008, the Michigan Department of Community Health initiated the Michigan Medical Marihuana Program (“Program”) to administer the registration program provided for in the MMA.
Since the Program began in April of 2009, approximately 6,000 Michigan residents have been admitted and received a registry identification card. The Michigan Department of Community Health receives 59 applications daily and number of applicants is increasing. About 88% of applicants are approved into the program. With these kinds of numbers, medical marijuana issues are certain to arise in the workplace.
Despite the passage of the MMA, employers are not required to allow marijuana use in their workplace. Specifically, there is no requirement under the federal Americans with Disabilities Act (“ADA”) for employers to accommodate a disabled employee’s medical marijuana use, since marijuana is considered illegal under Federal law. While the Michigan Persons with Disabilities Civil Rights Act (“PDCRA”) provides that employers may establish work rules and policies prohibiting the use of alcohol or illegal substances in the workplace, Michigan has now legalized the use of medical marijuana to designated individuals under the MMA.
However, the MMA specifically states that an employer does not have to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana. Further, the MMA prohibits an individual from (1) undertaking any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice; (2) smoking marijuana in any public place; or (3) operate any motor vehicle while under the influence of marihuana, among other prohibitions.
After the jump - workplace-specific issues created by the legalization of marijuana in Michigan
Additionally, the MMA does not address a number of work-place specific issues created by the legalization of marijuana. First, the MMA does not address the possession of marijuana in the workplace by appropriately registered individuals. There is nothing in the MMA which requires the employer to allow participating employees to bring their medical marijuana onto company property. Employers should discuss with their legal counsel about adopting a policy prohibiting employees from bringing controlled substances onto Company premises. Existing policies should also be reviewed by legal counsel to incorporate these recent changes in the law.
Second, the MMA does not address whether an employer is required, under the PDCRA, to accommodate an employee’s use of medical marijuana which occurs outside the workplace, when for example, he/she does not pass a work-related drug test. The MMA does not protect an employee who reports to work under the influence of medical marijuana, but whether an employee is under the influence is a very fact specific determination and should be treated with the upmost sensitivity, including consultation with legal counsel. The Michigan Department of Community Health’s website addresses the issue of drug testing and states:
Question: What should I tell my employer if I am subjected to a drug test?
Answer: The MMMA states that employers are not required to accommodate employees who use medical marihuana. You may wish to consult an attorney about whether or not to tell your employer that you are a patient in the MMMP. A patient may contact the MMMP in writing to ask the program to release information about the patient's registration to an employer.
The fact that an employee participates in the medical marijuana program is also confidential information, which should be protected the same as any other employee medical information.
Other states with medical marijuana statutes have affirmed the termination of an employee for failing a work-related and consistently enforced drug testing policy due to medical marijuana use. However, how other states have handled these issues is not dispositive of how Michigan courts will handle these issues in the future.
In the absence of clearer guidance, employers should protect themselves by adopting well drafted zero tolerance drug use and possession policies in the workplace. At a minimum, these policies should prohibit (1) the bringing of any illegal substances onto company policy; (2) reporting to work under the influence of any illegal substances; and (3) reporting to work under the influence of any illegal substances or lawful substances which impair the employee’s judgment and ability to work in a safe and appropriate manner.
Employers who utilize drug testing programs, should uniformly enforce their policies for handling employees who test positive for marijuana. However, such policies should be amended to include how the Company is going to handle employees who test positive who are participants in the Medical Marijuana Program. Employers should treat positive outcomes consistently and uniformly.
