Ask The Lawyer, “No Toke?” By: Daniel A. Gwinn, Esq.
BLUNT ADVICE TO WORKER: DITCH THE WEED; EMPLOYER’S POLICY IS ‘NO TOKE’.’
QUESTION: After a minor accident at work, one of my co-workers had to take a drug test – it’s company policy whenever there’s an accident. He tested positive for marijuana, and was fired. He said he wasn’t under the influence, but our supervisor said that didn’t matter. Since it’s now legal to smoke marijuana in Michigan, isn’t it against the law to fire someone for smoking pot, if they did it on their own time, away from work? I like to smoke the occasional joint, but I don’t want to get fired for it.
ANSWER: While recreational use of marijuana is now legal in Michigan under MCL 333.27951, the law specifically allows an employer to discipline an employee “for violation of a workplace drug policy or for working while under the influence of marijuana.” That is, if testing positive for marijuana is a violation of your employer’s drug policy, you can be terminated not only if you smoked marijuana at work or showed up to work high, but also just for having THC in your system – and THC can stay in your system as long as 25 days after your last use. So yes, if you violate workplace policy, you can be terminated — even if your use of the marijuana was legal.
While that sounds rough, you need to remember that Michigan is an at-will employment state and private employers can terminate workers for pretty much any reason (except those that violate a worker’s civil rights or run afoul of labor laws). An employer has broad rights to discipline a worker for conduct or misconduct, on- or off- the-job, that causes or might cause economic loss, or where the company’s reputation might be injured.
For instance, an employer’s decision to discharge workers who smoke has been upheld, based on the employer’s interest in keeping health premiums low. Comments on Facebook, even those that don’t specifically mention the employer, may be cause for discharge if the comments are at odds with the employer’s image, or are critical of an employer’s chief customer. (Remember the woman who was fired after posting a picture of herself giving the presidential motorcade the finger? Her employer did a lot of work with the Department of Defense, and felt her attitude toward the Trump administration could be harmful to its relationship with its client.)
Employers may have good reasons to ban any use of marijuana, legal in Michigan or not. For example, an employer who does business with federal agencies may choose to play it safe and follow federal law: Marijuana is still illegal, classified as a Schedule 1 Controlled Substance, along with drugs like heroin, LSD and cocaine. And, just as an employer might decide not to hire anyone who smokes cigarettes, in order to avoid higher insurance costs, it might decide not to risk the possibility of increased health insurance premiums that could be charged for workers identified as tokers. Marijuana use has a known impact on coordination and reaction time, may increase the likelihood of developing social anxiety disorders and depression, and has been associated with an increased risk of heart attack.
So, review your employee handbook carefully before you decide to use this legal substance. A positive blood test could still cost you your job.
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