Can I fire an employee that uses marijuana?

With the passage of the Michigan Regulation and Taxation of Marihuana Act (MRTMA), many employers are worried about the effect this would have on their business, especially those in high-risk industries where the use of marijuana could present a serious safety concern.  If your employees are now legally allowed to use marijuana for recreational purposes outside of work, what is stopping them from coming into work under the influence?

The passage of the Michigan Regulation and Taxation of Marihuana Act (MRTMA) legalizes the recreational use of marijuana within the state of Michigan for individuals over the age of 21.  However, under the act employers retain the right to drug-test and/or take disciplinary action, up to and including termination of employment, if there is reasonable suspicion that an employee is under the influence or in possession of marijuana while at work and/or during work hours.  Likewise, employers may still terminate employees for the possession, distribution, sale, transfer, use, and/or being under the influence of marijuana during work or while operating employer-owned vehicles or equipment.  Employers may apply this to employees who use marijuana either recreationally or medicinally.

Moreover, because marijuana is still illegal federally, there are certain industries that require drug testing that includes screening for marijuana (e.g., DOT drug testing).  These industries should not change their drug screening policies if they are required, by law, for their business.  Similarly, businesses with policies in place that require drug testing for pre-employment, post-injury, random testing, or under “reasonable suspicion” may still continue to test employees for the use of drugs, even if these tests detect for marijuana.  However, employers should have a proper policy in place that addresses marijuana in the workplace prior to taking any adverse action against their employees.

It is a relief to many employers that they can still keep their workplaces safe by continuing to prohibit the use and/or presence of marijuana in their company.  Nevertheless, it is still important for employers to create and maintain a policy that clearly states their stance on marijuana so that employees are aware of their expectations.  As a client of UAP, we can assist in the development of a policy that works well for your business.