Employers prep for new marijuana law

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Following the passage of Proposal 1 in Michigan, employers are now faced with the prospect of deciding how to draw up policies related to the legalization of recreational marijuana use.

From addressing their workplace policies to drug screenings for potential employees, business attorneys with backgrounds in cannabis law have said the next year will be telling for how employers address the new marijuana-friendly environment in Michigan.

“I think the first check would be for language that relates to legal substances versus illegal,” said Sara M. Moore, a management-side labor and employment attorney with Nemeth Law PC in Detroit. “If the policy states that they prohibit illegal drug use and if they also want to prohibit marijuana use, they’re going to look at the language and make sure that marijuana is also covered.”

Moore said that in addition to clearly written policies, companies will also have to make sure that individuals responsible for regulating and enforcing those policies are well-trained and prepared for marijuana-specific issues.

“There’s a slight concern with marijuana because if you’re testing and you are trying to identify whether somebody is using at work versus last weekend, you’re going to need additional observation to identify when it took place,” Moore said. “Some policies might need to be revised to incorporate a reasonable suspicion-type element to their testing policy.”

Whereas rules for retail and commercial developments related to the selling of marijuana products will be put together over the next year, Moore said employers will still need to be ready with policies in place by early December as the use of marijuana will then be legal.

“The impact is going to take place sooner because the law will likely be in effect in early December so people will be able to use. Over the next year is when we will see the law prepared in Lansing for retail sales,” Moore said.

The proposal permits employers to refuse to hire, discipline or take an adverse action against a person because of a violation of a drug policy or if an employee works under the influence of marijuana.

Therefore, Moore said any employers who want to maintain a zero-tolerance policy toward marijuana will still be able to do so.

Mark G. Morgan, director of compliance with Genesee Education Consultant Services, said one of those groups of employers to maintain marijuana-free policies will likely be school districts.

“If there’s evidence of any of that (use or being under the influence of marijuana), we’re going to reference our own policy which prohibits the use of that,” Morgan said. “We would send them for a drug test and if it’s positive, it would most likely result in termination.”

Morgan said federal laws affecting transportation employees and the delivery of marijuana will still apply.

“There are Michigan school laws that prohibit drugs in the workplace and in the hands of students. Students or employees cannot bring this stuff or be under the influence of it in school or workplace,” Morgan said.

Commercial activity

Aside from employment law concerns, Alexander M. Leonowicz of Howard & Howard in Royal Oak discussed topics related to the commercial side of the marijuana proposal.

He said the proposal was written to piggyback off of the Medical Marihuana Facilities Licensing Act in terms of businesses wanting to sell to recreational users.

“Because they’re going so slow on the MMFLA, it’s going to be some time before you’ll see individuals reapplying and going back through that system to get that additional permit for recreational uses,” said Leonowicz, who leads the firm’s Cannabis Industry Group. “I don’t think you’re going to see recreational product available for at least another six months.”

Leonowicz said one way in which the new proposal will differ from the MMFLA will be that municipalities will have to opt out of allowing marijuana-selling businesses, as opposed to opting into the MMFLA program.

“With this new ordinance, cities need to say they will not permit the use of cannabis recreationally,” Leonowicz said.

A 10-percent excise tax on marijuana sales will be distributed to municipalities, counties and schools, and used for roads, Leonowicz said. $20 million will also be put toward the research of medical cannabis effects on military veterans.

In terms of getting the product on the market, Leonowicz said there initially won’t be enough product to meet demand because of the amount of documents that regulators have been requesting from business applicants.

“It’s the way the laws are written with the disclosure requirements that these packets to submit for licenses are thousands of pages that someone has to review,” Leonowicz said. “That’s what I think is slowing the process down is the amount of information they’re requesting from applicants. If that can be lessened, it will go quicker.”

If you would like to comment on this story, email Thomas Franz at [email protected].