QUESTION: If the ballot proposal to legalize marihuana passes in November, will I be able to smoke pot on my break at work?

ANSWER: No – unless your employer is OK with pot use at work, which is highly unlikely. The ballot initiative, which would permit adults age 21 and older to possess and use small amounts of marihuana for recreational purposes, does not give pot-smokers any additional rights at work. Employers remain free to establish workplace drug policies; any use of marihuana that violates those policies – even medicinal use – can still result in discipline or discharge. Section 4(3) of the proposal states:

This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer’s property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marihuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marihuana.

Under many company policies, a worker can be fired for testing positive for marihuana; The courts have not limited a private employer’s right to fire workers for this reason, even when use of the drug is authorized under Michigan’s Medical Marihuana Act (MMMA). But, because medicinal use of marihuana is legal under the MMMA, an employee with a Registry Identification Card for use of medical marihuana who is fired for testing positive due solely to medicinal use cannot be denied unemployment benefits. Branka v. Challenge Mfg. Co, 307 Mich 340 (2014). Whether an employer would be on the hook for unemployment benefits for discharging an employee for any legal use of marihuana is unclear and untested.

The ballot proposal places several restrictions on the use of marihuana: People under the influence would be forbidden to operate a motor vehicle and the use of marihuana in a public place would be barred, including smoking pot on a public sidewalk and possessing marihuana — or marihuana accessories — or using marihuana on school grounds. The proposed law would also allow landlords to ban the use of marihuana on their properties.

Proponents of the proposal claim legalizing marihuana would allow law enforcement to focus on more serious issues and would help generate significant revenue for the state. The bulk of any revenues raised from taxes on the sale of marihuana would support K-12 education and help pay for road repair and maintenance (the remainder would go to municipalities and counties).

If the proposal passes, Michigan would join several states, including Colorado, Washington, Maine, and Vermont in permitting the recreational use of marihuana. Possession and use of marihuana remains illegal under federal law.

Trivia tidbit: Marihuana is spelled an “h” instead of a “j” in Michigan laws because that’s the spelling that was chosen by the federal government back in 1937 for the Marihuana Tax Act (before marihuana became illegal). That spelling was used in the statutory definition of marihuana in Michigan’s Public Health Code, and state laws have been using an “h” ever since. Changing from marihuana to marijuana would require an act of the legislature, and revision to marihuana references in countless statutes.

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