Ask The Lawyer By: Daniel A. Gwinn, Esq.-Testing Workers for Pot?


QUESTION: After a highly qualified candidate was disqualified for testing positive for THC on a pre-employment drug test, the human relations department of our business suggested we scrap the test completely. What’s the rationale behind taking such a drastic step?

ANSWER: The rationale for doing away with pre-employment screening tests — or at least testing for THC, the active ingredient in marijuana — is what you just experienced: These tests can deny employers the skills of well-qualified workers who have not done anything illegal.

Michigan is now one of 23 states in which the recreational use of marijuana is legal for people 21 and up. (Only two of our neighboring states, Illinois and Minnesota, have followed suit; Indiana and Ohio allow medical marijuana use only.) However, when Michigan voters gave the thumbs up in 2018 to a ballot proposal legalizing recreational marijuana use, the law they approved specifically allowed employers to continue to follow existing workplace drug policies, and to test and fire (or, as in your case, not hire) those testing positive for marijuana use.

But being allowed to have a strict workplace drug policy and actually having one are two different things. Many employers are re-evaluating their drug policies.

Firing a worker for testing positive for pot, without more, makes about as much sense as firing workers on Monday because they were out drinking with friends Saturday night. But while a worker who was partying at a bar over the weekend would not test positive for alcohol when he showed up sober and ready to work on Monday, his equally sober counterpart, who smoked a doobie Saturday, would test positive for pot. In fact, a test can show a positive result for marijuana three months or more after use.

And use of marijuana off-the-job is (generally) not a crime, and, according to some studies, is not likely to affect work performance.

The fact that marijuana use is legal is just part of the reason many businesses are taking a step back. According to one report, roughly 43 percent of young adults, age 19 to 30, reported using marijuana in 2021, while 29 percent reported using it in the past month. When workers are hard to find, many employers have decided it makes no sense to reduce the pool of applicants based only on legal use of a formerly controlled substance.

After 151 applicants were ruled ineligible for state jobs based on pre-employment testing for marijuana — the highest number of such disqualifications in five years — the State of Michigan decided enough was enough. On July 12, the Michigan Civil Service Commission voted unanimously to eliminate the pre-employment screening for marijuana for state office staff, and for positions that don’t require driving, operating heavy machinery or handling heavy equipment. Marijuana testing will remain in place for a number of other jobs, including health workers, Department of Corrections officers, and state police.

While marijuana testing will disappear for many state jobs, new hires must still pass tests for controlled substances such as cocaine, PCP and amphetamines.

Not every employer who might want to ditch screening workers for THC can do so. Marijuana — along with heroin and LSD — is still a controlled Schedule I substance under federal law, and federal agencies, federal contractors or business that receive grants from the federal government are required to establish and maintain a drug-free workplace. Truck drivers are also subject to testing, based on a federal law.

Deciding to do away with pre-employment testing for marijuana does not mean employers must put up with workers who are stoned on the job, any more than they must tolerate employees who show up drunk. If an employee is seen using marijuana at work, or if an employer has a reasonable suspicion that a worker is under the influence, a drug test can be administered. Employees who test positive after conduct that shows they were under the influence while at work can (and probably should) get the sack.

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]