November 28, 2018

Dear Friends and Colleagues,

            On November 6, 2018, Michigan voters passed Proposal 1, the Michigan Regulation and Taxation of Marihuana Act.  The proposal legalized marijuana for adult recreational use.  It will become effective ten days after the election results are certified (December 6^th?).  It may take up to one year for the Department of Licensing and Regulatory Affairs to develop rules and regulations governing the state’s recreational marijuana industry before it begins accepting applications.  Commercial availability of marijuana for sale may be delayed until early 2020.

            Proposal 1 allows adults age 21 and older to possess up to 2.5 ounces of marijuana on their person or up to 10 ounces in their home.  Adults can grow, but not sell, up to 12 plants in their home for personal use.

            Based upon an analysis of the proposal by Steven Kaplan, J.D., Michigan’s Proposal 1 allows the highest marijuana possession limits of all states in the nation.  Also, it does not regulate the potency of marijuana. 

            According to employment and labor attorneys at Miller Johnson, Proposal 1 does not:

• Require employers to permit employees to possess or use      marijuana in the workplace;
• Prohibit employers from disciplining an employee for      violating a workplace drug policy or for showing up for work with      marijuana in his or her system, or;
• Prevent employers from refusing to hire, discharge,      discipline, or otherwise take an adverse action against any person because      of the person’s violation of a workplace drug policy.

According to the lawyers at Miller Johnson, employers may still have policies that say what is, and what is not, acceptable workplace behavior, including the maintenance of zero-tolerance policies for their workforce.  Miller Johnson recommends, however, that employers should evaluate their current prohibited substances policies to address whether there is a clear statement that marijuana is considered an illegal substance, and the form of testing and the penalty for positive tests.  Miller Johnson recommends that employers consider the balance between safety and staffing when evaluating current policies, and determine whether the organization will retain a zero-tolerance policy or consider alternatives such as last change agreements.

With respect to workplace injuries, employers still have the right under MCL 418.305 to determine whether the injury was caused by the intentional and willful misconduct of the employee.  If so, compensability of the injury may be disputed.  If an employer can show that an injury was caused by the employee’s violation of the workplace drug policy, the worker’s compensation claim may be disputed.  If the claim is disputed, it will be the employer’s burden to prove, by a preponderance of the evidence, that violation of the workplace drug policy caused the injury.  Currently, there are no accurate, on-demand impairment tests for THC (marijuana) intoxication.  Therefore, employers will need to do a thorough investigation and obtain circumstantial evidence that the employee was intoxicated by THC/marijuana at the time of the injury, and that the intoxication was a contributing cause to the injury.  Circumstantial evidence could include eyewitness observations of erratic behavior, inattentiveness, carelessness, delayed reaction times, clumsiness, inability to follow directions, the injured worker’s statements relating to intoxication, etc., to persuade a magistrate that the injured worker was intoxicated by THC/marijuana at the time of the injury. 

Where an employer would typically have accommodated work restrictions arising from an occupational injury, but a post-injury drug test is positive for THC/marijuana (even though there is no determination as to a level of toxicity) and the injured worker is properly suspended or terminated under the workplace drug policy, ongoing wage loss benefits may be subject to dispute on the basis that the injured worker’s wage loss is not attributable to the injury, but is attributable to his/her violation of the workplace drug policy, resulting in suspension or termination of employment when restrictions could have been accommodated.

If the employer is accommodating an injured workers’ post-injury work restrictions and the injured worker tests positive for THC/marijuana, resulting in suspension or termination under the employer’s workplace drug policy, reinstatement of worker’s compensation wage loss benefits would also be subject to dispute on the basis of an unreasonable refusal of accommodated work.

In summary, although the passage of Proposal 1 has resulted in freedom from state and local prosecution for possession and usage of small amounts of marijuana, the constitutional amendment does not preclude employers from disputing workers’ compensation claims where it can be proven that THC intoxication was a contributing cause to a workplace injury and/or that a violation of the workplace drug policy for testing positive for THC resulted in removal of the injured worker from available work, resulting in the wage loss. 

If you have any questions or would like to discuss this matter further, please contact us at your convenience.