Legal expert discusses pot use among employees

Reid, a partner at Dinsmore Law firm and a member of the State Bar of Michigan Employment Council, delivers a presentation at the Shiawassee Regional Chamber of Commerce Tuesday regarding marijuana in the workplace.

OWOSSO — A statewide legal expert this week told area employers people who use medical marijuana don’t have any particular special protection in the workplace.

James Reid, a partner at Dinsmore Law Firm and a member of the State Bar of Michigan Employment Council, told attendees of a Weed in the Workplace session hosted by the Shiawassee Valley Personnel Association that because marijuana is still a Schedule 1 illegal drug at the federal level, they are allowed to fire someone because they smoke marijuana, or not hire someone for the same reason because “marijuana smoker” is not a protected class.

Tuesday’s discussion focused on what rights workers and their employees have related to consuming marijuana in and out of the workplace.

“The legalization of marijuana has brought about a lot of confusion in the workplace. We’re not experts about it here at the Chamber, but we’re trying to engage with experts to help our employers understand what their obligations are under the law,” Jeff Deason, president of the Shiawassee Regional Chamber of Commerce said.

According to Eplee v. the City of Lansing, Reid explained, “the Michigan Medical Marijuana Act (MMMA) doesn’t create an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class for users of medical marijuana.”

In the case of Cassius v. Walmart, an employee who had a medical marijuana card failed a drug test conducted by Walmart and was fired. He sued for wrongful termination and the court ruled against him because the MMMA only protects citizens in a criminal context and not in employment disputes.

“Even if it’s legalized, I don’t believe it will ever be a protected class,” Reid said. “At least not on the federal level.”

Reid suggested those in attendance not take marijuana into consideration when hiring, and possibly even having drug tests exclude marijuana.

“I believe it should be treated like alcohol,” he said.

Reid said he has observed about 90 percent of the companies he works with do away with pre-employment drug testing and the reason, he said, is because it hurts talent acquisition.

Regardless of the attendees’ stances or workplace rules on marijuana, Reid said, one of the most important things businesses can do is get a policy on the books.

“We shouldn’t be tricking our employees. We should state what our policies are about marijuana,” he said.

If legal action does take place, the first step when an employee sues, he said, is usually looking at the employee handbook to see what the workplace policies are.

Employers in Michigan are allowed to ask if someone is a marijuana user in their spare time.

Reid said the Michigan Unemployment Agency ruled that if someone is fired solely based on using marijuana, the employee can collect unemployment.

Shiawassee County Clerk Caroline Wilson attended Tuesday and echoed Deason’s confusion about what the new laws have brought.

“With the legalization of marijuana, there are all these fine lines employers are faced with. I just wanted to make sure that I was keeping myself informed on the changes in the laws,” she said.

In 2008 Michigan legalized marijuana for medical use and in 2018 did the same for recreational use.

In 2018, about 4.4 percent of the U.S. workforce tested positive for drugs. In the last year, that number climbed to 10 percent. The jump is most likely linked to employees believing there won’t be repercussions and not a 6 percent jump in worker use.

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