The Building Tradesman Newspaper

Friday, November 16, 2018

Marijuana legalization raises questions only the courts will answer

By Marty Mulcahy, Editor

With the 56-44 percent passage of Proposal 1 by voters on the statewide Nov. 6 ballot - allowing the recreational use of marijuana - what will change for Michigan workers, especially on construction job sites?

For those who don't use marijuana, of course, there's no direct effect at all. For those who do use pot, the new law regulates and decriminalizes the purchase, possession, and use of marijuana by individuals 21 and older. But in the workplace, there are likely going to be some legal issues to be sorted out, via lawsuits testing the limits of the new law. And users who value their job, at a minimum, are advised that they're still going to be subject to any workplace rules that prohibit the use of, or the effects of, drugs and alcohol while on the job.

"Employers who wish to maintain a drug-free workplace will be able to continue to do so," under the new law, wrote Sarah Nirenberg, a workplace law attorney based in Birmingham, writing for Macomb County Legal News. "They will not have any obligation to accommodate the use of marijuana in the workplace or on their property."

The new law itself says “This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer's property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marijuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person's violation of a workplace drug policy or because that person was working while under the influence of marijuana.”

So, that means Michigan businesses are free to restrict or ban marijuana use?

"Maybe," says an article by the nonpartisan Bridge Michigan group. "Several attorneys with expertise in employment and cannabis law told Bridge that the language as written would allow employers to continue to set — and enforce — their own drug policies."

Maybe not, chimes in the Michigan Chamber of Commerce, which says the law's language is too vague. The business group opposed Proposal 1 on the grounds that "it would threaten the ability of employers to maintain a safe and drug-free workplace." The Chamber said the specific language in the new law will "create any number of issues for employers and the workplace and encourage lawsuits to be filed against employers."

Management and Unions Serving Together (MUST), the Michigan-based, union-management group that has delivered worker safety awareness and drug testing services for decades, had urged a "no" vote on Proposal 1. "We support a safety conscious and drug-free workplace and cannot support Proposal 1, which we feel will damage our industry," said MUST Management Co-Chair Donna Pardonnet. "Worker safety and workforce attraction is too important for us to gamble on Proposal 1."

MUST stressed that its top priority is worker safety - but with the new law it also expressed concerns about the construction industry's ability to attract workers who won't be able to pass drug tests "at one of the most peak demand times in Michigan history" for skilled worker recruitment.

"Michigan does not need one more factor to contribute to existing recruitment challenges," MUST said. "Construction sites are dangerous and require a strong culture of safety consciousness and a drug-free workforce."

While its legal team is reviewing the ramifications of passage of 2018's Proposal 1, MUST referred back to its policy issued 10 years ago, when Michigan voters approved the usage of medical marijuana. At the time a safety bulletin issued by the group noted that "it should be stated clearly that the MUST Safety/Drug Testing Policy has NOT changed due to the legalized medical marijuana."

Furthermore, MUST's statement for workers said: "If it is determined that your drug screen results were positive due to the use of marijuana from the 'medical marijuana' program you will be considered 'ineligible" and your status will be marked 'ineligible' on your report card."