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After the Passage of Proposal 1: Employers Can Still Fire Employees for Recreational Use of Marijuana

Legalization Map.pngMichigan voters recently voted to pass Proposal 1, a proposal to legalize the recreational use and possession of marijuana for persons 21 years of age and older. Although the proposal passed, as of November 2018, the results have not yet been certified and marijuana remains prohibited under state law. Once it becomes legal, it will still take some time before sales licensed by the state will begin.

Even after the proposal becomes law in Michigan, employees in Michigan will not be free to smoke marijuana without potentially serious consequences to their lives and livelihood. First and foremost, marijuana possession will remain illegal under federal law, meaning the possibility of incarceration remains a real, if unlikely, possibility.

Moreover, there is no law in Michigan prohibiting an employer from setting work rules that ban the use of marijuana while on the job. Even off the job, there is no law in Michigan prohibiting an employer from terminating an employee for the use of a drug, even alcohol. That's right! If your employer learns that you consumed a beer on Sunday while watching the Lions play it could be a terminable offence.

For at-will employees - employees that are non-union - there is nothing stopping an employer from terminating you for any reason, so long as the reason doesn't violate a law, regulation, or other rule. There is no law in Michigan that stops an employer from firing you for the use of marijuana, even use for medicinal purposes.

drug-test-results.jpgUnlike alcohol, marijuana can stay in your urine for 3 days to a month, and perhaps even longer. In general, this means an employer engaging in random drug testing is far more likely to find marijuana in your system than alcohol. Further, there is currently little way for an employer to determine if an employee is "high" on the job or simply consumed marijuana recently. This means an employee who uses marijuana is taking a big risk even when they consume marijuana off the job.

Some states, like Colorado, have considered passing legislation that would make it illegal to fire workers solely on the basis of a positive test for marijuana. Colorado's proposed law would require an employee to use, possess, or be impaired by marijuana while working in order to be properly terminated. However, nothing like this law has been proposed in Michigan.

It is still early in Michigan's experiment with the legalization of marijuana. It is possible in the future that the state will consider passing legislation that would require an employer to show impairment before firing an employee. However, until then, employees who use marijuana recreationally, even off the clock, put their jobs at risk every time they pick up a pipe or bong. Before partaking, it may be worthwhile to discuss your employer's position on off-the-clock use of marijuana. It is a conversation that could end up saving your job.

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