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Updating your Policies around Recreational Marijuana

(3-5 minute read)

Marijuana is currently legal for recreational use in four states and allowed for medical use in several more. Michigan’s recreational marijuana law, officially known as the Michigan Regulation and Taxation of Marijuana Act, went into effect December 6th, 2018. Well, part of it, at least. Voters passed Proposal 1 in November, 2018, making Michigan the first Midwestern state to legalize recreational marijuana.

Specifically, it is legal in Michigan for anyone over 21 years old to grow, consume, and possess marijuana, but not purchase or sell it.  Under the new law, a person can carry up to 2.5 ounces as long as they are not at a K-12 school or on federal property (like Sleeping Bear Sand Dunes, for example). Just like alcohol, it will be illegal to consume marijuana in public.  In addition, business owners can prohibit smoking pot on their premises. Business owners cannot, however, stop people from possessing marijuana or consuming non-smokable marijuana products.

However, most organizations have adopted a drug-free workplace policy that persists and applies regardless.

Weeding through the various marijuana state laws and how they interact with workplace policies can be difficult, but a Colorado Supreme Court ruling recently made it a lot more clear.

Although workplace policies generally must follow federal, state, and local laws, they’ve hashed out an exception for marijuana. Even in states that allow the use of marijuana, a company’s drug-free workplace policy can trump state law.

Example: Mary Jane, a Colorado employee, uses the legally-allowed amount of recreational marijuana while off-the-clock at home, then tests positive to a random drug screen the next week. If the company has a zero-tolerance drug-free workplace policy, Mary Jane can be subject to termination.

The Colorado Supreme Court further cemented the company’s ability to overrule state law in a ruling that many believe will set precedent for Colorado and other states in which marijuana use is legal. A quadriplegic employee had a medical marijuana card, consuming it while off duty to manage leg spasms. After he tested positive in a random drug screen, he was fired by his employer for violating their zero-tolerance drug-free workplace policy. The Colorado Supreme Court upheld the termination as lawful. Since recreational and medical marijuana use in unlawful on the federal level, the state’s Lawful Off-Duty Activities statute would not protect an employee who is violating an established company policy.

Further, the legalization of marijuana does not cross state lines. If an employee consumes marijuana in a state where it’s legal, then comes home and fails a company’s drug screen, the employee can be subject to the consequences lined out in the company’s drug-free workplace policy, including termination.

Have you looked at your employee handbook to ensure your drug-free policy is worded well? Have you ensured your employees have acknowledged the policy if it was changed after some of them were hired? Axios HR is here to help.




January 14, 2019




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