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The Michigan Marihuana Act puts employers in a tough spot (yes, it is spelled with an “h” in the Act). The Act allows individuals with certain debilitating medical conditions to cultivate, possess, and use marihuana to help manage their condition. The Act does not require employers to accommodate marihuana use in the workplace. But it protects individuals from discipline or “penalty in any manner” related to their qualification under the Act. Thus, it raises questions about an employer’s drug tests, hiring policies, or other common practices aimed at ensuring a safe and drug-free work environment.

The Act was presented as a proposal on last November’s statewide ballot, and passed by a 63% vote. The Michigan Department of Community Health recently promulgated administrative rules establishing procedural requirements for registration as a qualifying person under the Act.

The Act states that a “qualifying person” with a debilitating medical condition is free from state prosecution for cultivating, possessing, and using marihuana. It provides the same protection for a “caregiver” of a qualifying person. It includes a non-exhaustive list of possible qualifying medical conditions, including cancer, glaucoma, HIV-positive status, immune deficiency syndrome, hepatitis C, Crohn’s disease, and agitation of Alzheimer’s disease, among others. Any person seeking qualification under the Act must be registered with the State, which requires an MD-provided written certification of a debilitating medical condition that warrants medicinal use of the drug. A patient or their caregiver may possess up to 2.5 ounces of the drug and grow as many as 12 marihuana plants at any one time for personal consumption. Sale is prohibited.

This new statutory protection raises obvious concerns for Michigan employers that wish to ensure a safe and drug-free workplace. An employer is prohibited from taking adverse action against a qualifying person based on approved marihuana use. The Act states that a qualifying patient (or his or her caregiver) “shall not be subject to penalty in any manner or disciplinary action by a business for the medical use of marihuana in accordance with the Act.” Thus, in the case of an applicant or employee who is properly registered to use marihuana in accordance with the Act, an employer is not to use a positive drug test or other knowledge of non-workplace use as a basis for a refusal to hire or promote, for termination, or for any other adverse job decision. The same is true for a registered caregiver, who may argue that a positive drug test resulted from “second-hand” ingestion of marihuana smoke while caring for a registered friend or family member. The State’s marihuana registry is confidential, so employers are unable to search that index for corroboration.

But the new statute does not completely hamstring Michigan employers. It does not require employers to allow drug use in the workplace, stating “nothing in this Act shall be construed to require . . . an employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.” The phrase “under the influence” is not defined. However, that provision suggests that, even for employees properly registered as qualifying patients, employers need not allow them to use marihuana at work or to come to work while their judgment may be impaired from recent use. In this sense, one can view it as akin to the use of prescription medications. If, for example, an employee is impaired and unfit for work due to prescribed ingestion of Valium or Vicodin, the employee may be subject to discipline or required to take a medical absence until fit to return.

The Act places further limits on where a person may possess, smoke, or be under the influence of the drug. Even qualified patients may not possess or use marihuana on a school bus, school grounds, or in a correctional facility. Nor may they smoke marihuana on any form of public transportation or in any public place. And a qualified patient cannot operate a motor vehicle while under the influence.

The Act does not speak to whether an employer may bar possession of marihuana on its premises (unless the employer is a school or correctional facility). Therefore, if a qualifying employee is not ingesting the drug on the employer’s premises and is not selling or otherwise using it for some unlawful purpose, an employer would risk violating the Act if it imposed discipline for mere possession of a medically approved amount of marihuana at work.

It will be up to the Michigan courts to resolve many issues that will arise concerning drug tests, working with marihuana in one’s system, and worksite possession of the drug.

Jay C. Boger

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