In early November of 2018, Michigan, Missouri, and Utah joined the growing list of states that have legalized some form of marijuana use. This growing trend is of particular significance to employers who maintain drug testing policies and workers in several states, as the laws on cannabis use vary.
Michigan joined nine other states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington) and Washington D.C. in legalizing marijuana for recreational purposes. Under the new legal framework, Michigan employers are not required to permit or accommodate marijuana use or possession at the workplace or on employer property. Accordingly, employers may discipline employees for violation of the drug policy and for working while under the influence of marijuana. Employers may continue to drug test employees and applicants for marijuana and take adverse employment action for a positive test.
Missouri passed Amendment 2, which permits the use of marijuana for certain approved medical reasons. Employers in Missouri may still test applicants and employees for marijuana, and are not required to accommodate its use. Missouri's Amendment 2 prohibits a filing of wrongful discharge or similar claims based on a positive test for marijuana or for maintaining a prohibition against working while under the influence of cannabis.
Proposition 2 passed in Utah, and decriminalized the use of marijuana for medical reasons. Proposition 2 was subsequently revised to create the Utah Medical Cannabis Act, a compromise between supporters and opponents of Proposition 2. Certain terms of the law continue to be unclear as it is now up to the state legislature to implement the measure. Employers should continue to monitor developments and guidance as to whether possible accommodations for medical marijuana users may be proposed.
Employers nationwide can expect an increasing acceptance of marijuana usage. Employers must balance enforcement of drug testing policies and maintaining a safe workforce with compliance with laws regulating and possibly accommodating the use of marijuana and retaining and attracting employees. Lewis Brisbois' Labor & Employment Law attorneys are always available to counsel employers on marijuana in the workplace and related compliance issues.
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