By Ross Keilen

On November 6, 2018, Michigan voters elected to allow the possession, use, and cultivation of marihuana (also known as “marijuana”) by persons twenty-one years of age or older. So, how might this effect private employers? Public employment of course differs as marihuana is still illegal under federal law. The following are some key provisions in the Michigan Regulation and Taxation of Marihuana Act (the “Act”) relevant to private employers:

• The Act “does not require an employer to permit or accommodate conduct otherwise allowed by [the Act] in any workplace or on the employer’s property.”
• The Act “does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working under the influence of marihuana.”
• The 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 marihuana.”

Takeaway

The express language of the Act does not appear to alter employers’ rights in individual workplaces. For example, private employers may still implement workplace drug policies. In addition, private employers may still require drug tests if done properly. Kathleen Gray, Michigan employers still can fire you for smoking pot, Detroit Free Press (Nov. 7, 2018). However, private employers should exercise caution when taking actions pursuant to the Act as Michigan courts have not yet had the opportunity to interpret the Act.