GRAND RAPIDS, Mich. (WOOD) — What does legalized pot mean at work?
The short answer is that Michigan’s new recreational marijuana law does not regulate the drug policies of employers. They can still prohibit possession or use of marijuana by employees and punish employees who test positive in drug tests.
But experts say employers are going to have to decide how to conduct themselves in an environment where pot is legal and labor is in short supply.
“It will absolutely force, I think, most employers to go back and look at their polices and at least decide what to do about it,” said Luis Avila, labor and employment attorney partner at Varnum Law.
“Are those policies something you would never give up for anything or do you want to be a company that can attract any kind of talent regardless of what people do on the weekend?” Roberta King, co-owner of marijuana PR firm Canna Communication, said. “There have been a couple of businesses out there that have said, ‘It just isn’t worth it.'”
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Some employers will have no choice but to maintain their policies because marijuana is still illegal at the federal level. For example, truck drivers are subject to federal Department of Transportation rules, as are many companies that receive federal funding.
“Nonprofits, universities, the health systems here, banks, a lot of organizations that are not going to be able to change their policies because they are still subject to federal requirements,” Avila said. “It will require some decision-making on the employer’s part as to how to treat each employee.”
Others may find they need to rethink zero-tolerance policies if they want to keep jobs filled. A look at other states where marijuana has been decriminalized shows that some employers relaxed their policies while others found themselves hiring workers from out of state because they could not fill positions with the local workforce and keep their drug-free workplace.
“You will take an approach where it’ll be a case-by-case basis. If you test positive, why did you test positive? Was it because you received it secondhand at a concert a few days ago or was it because you were smoking it this morning?” Avila said. “I think it makes sense especially in organizations where their employees might not be subject to federal requirements or have safety sensitive issues.”
Some employers may have to take a more nuanced approach.
“Does your pizza maker need to pass a screening test or can you test when they cut pepperoni and their finger?” King said.
“Employers are moving to a reasonable suspicion standard, where if they observe you, if they smell you, if there’s reason for them to believe you might be under the influence at work, they’ll probably test you, and I think it’s a food standard to follow,” Avila said.
The legal landscape is shifting at the national level. Medical marijuana users in Massachusetts, Connecticut and Rhode Island have won lawsuits in the past year against companies that rescinded job offers or fired workers after positive tests for cannabis. Arizona and Delaware have state laws banning employers from firing workers for off-duty use of marijuana.
Following the departure of antimarijuana hardliner Jeff Sessions as the U.S. attorney general, there are signals from the White House that the administration may be softening on legal pot. Labor Secretary Alexander Acosta told a congressional hearing earlier this year that employers should take a “step back” on drug testing.
24 Hour News 8 reached out to more than two dozen of West Michigan’s largest employers. Those that chose to respond said they have no plans to change whether or not they currently test employees.
“Drug testing is a cultural thing: We do it because we’ve always done it. We never gave same-sex benefits to anybody but now we do,” King said.