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The Paradox Of Proposal One

(5-7 minute read)

Whether you call it marijuana, cannabis, weed, reefer, gonja, Mary Jane, herb, dope, doobage, riding the Pineapple Express, or anything else, talk of recreational marijuana is on the lips of more and more people in Michigan. With the passage of Proposal One, Michigan has joined numerous other states that have legalized the use and limited possession of marijuana. Whether you agree with the ballot or not, the laws – and as Bob Dylan sang – “the times are a-changing”. While recreational use, possession, and growth of marijuana it is not legal yet, it is likely that the details of the laws are expected by December 6, 2018. There is a lot being said about the new law, but there are a few key points that employers need to know to deal with the change in the social and legal landscape. One way to help think about how to deal with the impact of Proposal One is that marijuana will be managed in many ways like alcohol. Both will be legal substances that can impair judgement, reaction time, and productivity, creating a real challenge for employers.


The Pot Paradox: Controlled Substance vs. Legal Use

Despite strong lobbying and voter actions increasing acceptance across the county, the Federal Government maintains that marijuana is classified as a Class 1 Controlled Substance. As long as this stance remains (and there is no apparent movement at the Federal level to change this), we live in a world where State and Federal lawmakers disagree on the legality of the drug. This creates challenges for employers, law enforcement, and legislators alike. Among the largest challenges that face employers is the lack of understanding of how the use of marijuana impairs an individual and what risks that introduces to the workplace. As long as the drug remains a Class 1 Controlled Substance (alongside drugs such as LSD, Heroin, Cocaine), there is neither Federal money nor access to the drug to conduct the expensive research to provide clear standards that define impairment. While early adopting states such as Colorado are paving the way towards standards, the lack of clear standards increases the challenge of managing a safe and productive work environment.


The Impairment Challenge & Employer’s Rights

Proposal One did not limit the employer’s ability to manage the workplace in any way. Existing policies for drug and alcohol use in the workplace still apply. A challenge for employers between managing alcohol and marijuana is the ability to recognize and test for impairment as well as the tendency of the metabolites from marijuana use (the factors tested for by drug tests) to detect the presence of marijuana use long after a period of impairment has ended. The current “reasonable suspicion” standard will remain the benchmark and it is important to take into consideration recent OSHA rulings regarding blanket (test everyone) standards when investigating workplace accidents. It is up to the employer to define and adhere to reasonableness, but it is a safe bet that empty bags of Doritos, a stack of empty mountain dew cans, and a sloppy grin will not be upheld as reasonable.


What Should Employers Be Doing Now?

While the law and implications are not clear, employers actions are more easily defined. We recommend employers take a few key steps to prepare for the changes.

  1. Review your policies and handbook – make sure that you have the language you want relating to use of drugs and alcohol in your handbook. Review policies to make sure that your disciplinary actions are understood by managers and your leadership team is aligned on how to manage the new law.
  2. Review your pre-employment processes and other drug testing rules. Take time to define your company’s stance on pre-employment positive results. You retain the right to disqualify anyone that fails a drug test, but employers would benefit from thinking through safety and staffing implications of whatever stance they take.  There is not a one shoe fits all approach on this issue, workplace needs are simply too diverse for a single solution.
  3. Communicate the company position to employees. Even if managers and leaders are not comfortable talking about marijuana, you can bet your employees are talking about it. It is a good idea to be up front and honest with your employees regarding the company position on issues such drug testing and maintaining a safe and productive work environment for all employees.



November 22, 2018




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