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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

Joe is a great employee. His work ethic and likable personality recently landed him a coveted supervisor position. You random drug test employees every few months because most employees operate heavy machinery. Joe tested positive. Joe explains that he has never been high at work. Joe tells you that he went to a buddy’s house for a party last weekend. One of Joe’s friends brought a joint which the friends passed around. Joe thought this was okay because marijuana is now legal in Michigan and he smoked marijuana on a Saturday, not during work hours. 

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* * * After Colorado legalized recreational marijuana,&nbsp;a 2014 survey of Denver-based employers revealed that approximately 20%&nbsp; of employers increased their drug testing policies and protocols.

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* * * Carrie is a Neonatal Intensive Care Unit (NICU) nurse at your hospital. She graduated top of her class in nursing school. Patients adore her. Her duties include administering treatments and medications to infants, operating advanced medical devices, and educating family members on infant care. One night, Carrie is catching up with another nurse between rounds. Carrie says work is great, but personal issues with her boyfriend are stressful. Her anxiety makes it hard to sleep through the night. Carrie then mentions that, because marijuana is now legal, a friend recommended smoking marijuana before bed to help her fall asleep. She tells the nurse that this has really decreased her stress levels and she is able to fall asleep much faster. Dr. Johnson, the physician on staff, overhears Carrie’s entire conversation.

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Employers have long dealt with difficult scenarios involving alcohol and drugs. With the legalization of recreational marijuana in Michigan, the complexity will rise. Each employer’s situation is unique. Here are some factors employers should consider when creating their strategies.&nbsp;

Nature of your jobs.&nbsp;Do you have a safety sensitive workplace? Do employees operate dangerous equipment? Do you have employees who operate medical devices or interact with patients? And, given that marijuana is still illegal under federal law, do you hire employees to perform federal contracts or who are subject to federal agency regulations?&nbsp;

Testing.&nbsp;What are the mechanics of your drug testing policy? Do you test pre-employment, randomly or for cause? Do you conduct preliminary on-site alcohol/drug testing or will you transport employees off-site? How close is the nearest testing facility? Who will do the transporting? What about employees on second or third shift, or those working weekends?

Employers should consider the drug testing itself. Some drug test panels only test for five drugs. Some panels test for 14 drugs. What are the “drugs of choice” in your community and are you testing for them?&nbsp;

Discipline.&nbsp;What if an employee tests positive for alcohol or drugs? What if the employee refuses to take a drug test? Employers should consider whether their drug policies define discipline as giving employees one free pass or immediate termination. Will you draw a distinction between alcohol, marijuana and other drugs like cocaine, heroin or meth-amphetamines? Are you prepared to lose a top performer because of a positive marijuana test result?

Communicating expectations with employees. Whatever your drug and alcohol policy is, you should remind all employees of its details, especially in light of the new recreational marijuana law. Employees need to understand that a drug test could still be positive even if the employee used marijuana hours, days or even weeks before the test. And, they should understand the consequences&nbsp;of a positive test.&nbsp;

Summary.&nbsp;The legalization of recreational marijuana in Michigan certainly raises new concerns for employers. Now is a good time to revisit your drug and alcohol policies.

Cannabis

Of Counsel

Louis C. “Lou” Rabaut

Labor and Employment

Recreational Marijuana – Revisiting Your Drug and Alcohol Strategy

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Recreational Marijuana – Revisiting Your Drug and Alcohol Strategy

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