Personal, after-hours use of marijuana by employees has been in the news recently, after the Supreme Court of Colorado ruled that employers can fire employees for off-duty medical marijuana use. I have received questions from employers regarding this issue and drug test policies. The law here in Michigan has been pretty clear since 2011.
In the case of Casias v. Wal-Mart, Joseph Casias, a Wal-Mart employee failed a drug test following a workplace injury. Wal-Mart had a zero-tolerance policy for failed drug tests, and promptly fired Mr. Casias. Mr. Casias tried to argue that the Michigan Medical Marihuana Act protected him from being penalized by his employer for medical use of marijuana. The federal court in Grand Rapids, Michigan ruled that the law only protected medical marijuana users from state penalties, not from actions by private parties. Therefore Wal-Mart could fire Mr. Casias even though he was properly using marijuana for medical reasons.
While Michigan's Supreme Court hasn't ruled in a case like this, the federal court's reading of the law seems accurate, and it is very likely that a state court would rule the same way. But, federal courts don't make Michigan laws, and a state court could disagree. It would be interesting to see if some fired employee wanted to actually test this in state court.
Employers in Michigan should have no problem enforcing zero-tolerance drug policies, or firing an employee any time they fail a drug test. The only real issue an employer faces is what to do if they don't want to fire an employee who fails a drug test, or uses marijuana outside of work.
If the company has a written policy, they will have to apply that policy consistently to all employees, otherwise risk a discrimination lawsuit. So, if your best employee fails a drug test, and you decide to ignore your own policy, you will have to do that for everyone else as well.
Medical marijuana use is still a crime in Michigan.
If you have no policy regarding employee drug use, you face other problems. Michigan's medical marijuana law just gives people a defense for the crime of marijuana use. Using marijuana is still illegal in Michigan, even if you have a medical card.
The medical marijuana law does not protect employers.
The law is only written to protect patients, caregivers, and physicians. Your business will have no protection if employees store or use marijuana at the workplace, or if an employee causes an accident and a test shows that they had used marijuana. Criminal arrest and lawsuits are a real possibility.
To Test or Not to Test
Whether or not your business drug tests employees will depend on your specific business. Unlike alcohol, marijuana can be found with tests long after use, so you can't just ignore after-hours use by employees.
What you decide to do will depend on your business needs, but you should be sure to have solid legal advice before you decide to implement a policy, or before you decide to do nothing.