Weed in the Workplace: What Michigan Employers Can Do Now that Marijuana Use is Legal

Yesterday, November 6, 2018, Michigan voters approved recreational use of marijuana. The new law, called the Michigan Regulation and Taxation of Marihuana Act (MRTMA) allows adults 21 years of age or older to use and possess up to 2.5 ounces of marijuana and grow up to twelve marijuana plants in their residence for recreational use. It also authorizes state-licensed retailers to engage in the commercial sale of marijuana. The ballot initiative will go into effect ten days after the election results are certified, which will likely occur by early December.

Employers are likely wondering the extent to which they will have to tolerate marijuana in their workplaces under this new law. Contrary to popular rumor, the legalization of recreational marijuana will not fundamentally change the way Michigan employers operate their businesses. The MRTMA does not restrict a private employer’s right to maintain and enforce a zero-tolerance drug and alcohol policy. Under the law, an employer does not have to permit or accommodate recreational marijuana use in any workplace or on the employer’s property. Employers can continue to prohibit the possession, distribution, manufacture, and/or consumption of marijuana, in any form, at work.

Additionally, employers can continue to prohibit employees from coming to work under the influence of marijuana. Employers may also continue to drug test for marijuana, and if they choose to do so, employers can refuse to hire, can discipline, or can discharge a person who tests positive for marijuana, otherwise violates a workplace drug policy, or comes to work under the influence of marijuana.

What Does This Practically Mean for Employers?

If your employee shows up to work under the influence, you continue to have the right to discipline or terminate this employee. If an applicant or employee tests positive for marijuana, you continue to have the right to refuse to hire them or to terminate their employment.

Clearly, the real challenge for employers will be identifying employees who are working “under the influence” of marijuana. Unfortunately, the MRTMA does not define what “under the influence” means. Until Michigan passes additional laws or regulations, employers may find it helpful to review laws in states that have already permitted recreational marijuana use. For example, in Colorado, a person may be charged with impaired driving if their drug test reveals a THC level of 5 ng/ml. An employer should take into account drug test results, along with observable indications of impairment, before taking any adverse action against an employee who appears to be under the influence at work.

One cautionary note – employers should exercise caution before terminating, disciplining, or refusing to hire someone for their use of medical marijuana. In the last year, at least two state courts in Massachusetts and Connecticut have interpreted their state laws to prohibit adverse action against individuals who use medical marijuana due to a disability. Michigan courts have yet to interpret the applicability of Michigan’s Persons with Disability Civil Rights Act to this issue, so it is still an open question in Michigan whether employers have a duty to accommodate medical marijuana usage under state law.

This issue of recreational marijuana use will obviously be a hot topic for Michigan employers in the coming weeks and months. Please contact one of Varnum’s Labor and Employment attorneys if you have any questions about this issue or require assistance in updating your drug and alcohol policy.

Source: Varnum

With Jeff Sessions Out, The New AG Should Advance Marijuana Policy By Restoring The Cole Memorandum

When President Trump announced that then-U.S. Senator Jeff Sessions (R-Ala.) would head the U.S. Department of Justice, cannabis business leaders were rightfully concerned. After all, Sessions has been notoriously vocal about opposing cannabis in any form.

“Good people don’t smoke marijuana,” the Senator said at an April 2016 hearing. “We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized,” he added. “It’s in fact a very real danger.” The list of colorful quotes goes on and on.

Today, Sessions is out of the Trump Administration, resigning at the president’s request after months of speculation that his tenure would be up shortly after the midterm elections. Many factors led to this, but it is unlikely that Sessions’s position on cannabis was one of them.

To understand why, let’s review Sessions’s record. Given his hard line on cannabis, many expected official DOJ policy to adopt and enforce Sessions’s anti-marijuana views. In one respect, that has been the case. In early 2018, in a major blow to the cannabis sector and its advocates, Sessions rescinded a 2013 DOJ memo issued by Obama-era Deputy Attorney General James Cole that directed federal prosecutors not to enforce the federal cannabis ban in states that had legalized cannabis use and had implemented sufficient regulations to control it.

By rescinding the Cole memo, Sessions threatened the Obama Administration’s explicit hands-off approach to cannabis enforcement in jurisdictions where it was legal for medicine or recreation – a list that now includes 31 states plus the District of Columbia. But outside of that one action — despite rumors of a shadowy Marijuana Policy Coordination Committee charged with waging a “war on weed” — public federal anti-cannabis activity has been difficult to detect.

Rescinding the Cole memo did not lead to the worst fears of a full-scale prohibition or DOJ ramp-up of federal enforcement. But Sessions’s move did give cannabis opponents something to celebrate: a legal cannabis industry facing greater uncertainty.

For example, if national banks and credit card companies were nervous about entering the sector before, losing the Cole memo made it untouchable – a state of play that is already holding back the greatest potential of the sector. As I discussed in Forbes in August, the industry would be tremendously boosted by the safety, security, and transparency that comes from working with large financial institutions if it were permitted. But major financial institutions will not touch this sector until it is declared legal to do so.

There are glimmers of hope, however, now that Sessions has left office. For all of his anti-cannabis bluster, it seems like his former boss doesn’t share his opinion, and that could lead to new legal protections for the industry.

For example, in June, U.S. Sens. Cory Gardner (R-Colo.) and Elizabeth Warren (D-Mass.) introduced the STATES Act, which would amend the federal Controlled Substances Act to exempt state-legal cannabis activities from its provisions and allow banks to work with legal cannabis businesses. Asked at a press conference whether he supports the Gardner-Warren bill, President Trump responded, “I probably will end up supporting that, yes.”

Then, in October, U.S. Rep. Dana Rohrabacher (R-Calif.) told Fox Business that he had been “talking to people inside the White House” about ending the longstanding prohibition on cannabis. According to Rohrabacher, “the president intends to keep his campaign promise” to protect states that have legalized cannabis in some form from federal interference. While these are hardly definitive indications that Trump will support legal cannabis in the end, they may be signs that progress might be on the horizon.

If this is the case, a logical first step for the incoming Attorney General would be to reinstate the Cole memo. Absent legislation being passed today to federally legalize cannabis or allow national banks to serve legal cannabis businesses, this will help remove at least some uncertainty about how the federal government will treat the sector in states where it is legal, regulated and safe.

Source: Forbes

Michigan Becomes First State in Midwest to Legalize Marijuana, As Missouri and Utah Approve Medical Marijuana and Florida Restores Felony Voting Rights

This Election Day showed the burgeoning political clout of the drug policy reform movement, with the results expected to accelerate efforts to legalize marijuana and to end the broader war on drugs in states across the U.S., at the federal level, and internationally.  
Michigan voters approved Proposal 1, a ballot initiative to legalize, regulate and tax marijuana for adults 21 and over, making it the 10th U.S. state to legalize marijuana – and the first in the Midwest. Missouri and Utah also became the 32nd and 33rd states to approve medical marijuana. 
“Western and northeastern states have led the way on legalizing marijuana, but the victory in Michigan powerfully demonstrates the national reach of this movement,” said Maria McFarland Sánchez-Moreno, executive director of the Drug Policy Alliance. “With such overwhelming public support for marijuana legalization, even including majorities of Republicans and older Americans, there’s only so long that the federal government can continue to hold out.”
Michigan’s Proposal 1 will legalize, regulate, and tax marijuana in Michigan for adults aged 21 and older. It allows for the possession of up to 2.5 ounces of marijuana and cultivation of up to 12 plants for personal use, while also establishing a legal framework for the licensing and regulation of marijuana businesses and products. There were over 200,000 marijuana arrests in Michigan from 2007 through 2016, averaging roughly 21,000 per year. Of those arrests, 84% were for personal possession.  The Drug Policy Alliance and its lobbying arm, Drug Policy Action, helped fund and played a significant role in drafting this initiative.
Missouri’s victorious Amendment 2 will provide legal access to medical marijuana for patients with certain qualifying conditions. It creates a robust system of access for patients through the Missouri Department of Health and Senior Services while allowing physicians to decide when medical use is appropriate. Missouri had three separate medical marijuana initiatives on the ballot. The Drug Policy Alliance and its lobbying arm, Drug Policy Action, played a leading role in drafting and funding Amendment 2.

Voters in Utah passed Proposition 2, which will protect terminally and seriously ill patients with specific debilitating medical conditions from arrest and prosecution. It will establish a regulatory system to license and regulate the production and distribution of medical marijuana.
Florida voters, meanwhile, approved a historic initiative to restore the vote to over 1.4 million people with past felony convictions upon completion of their sentences, except for those convicted of murder or a felony sexual offense. As in most other U.S. states, drug possession is punished as a felony in Florida.
Embracing drug policy reform proved to be a winning strategy for gubernatorial candidates, as Gavin Newsom (CA), Jared Polis (CO), J.B. Pritzer (IL), and Michelle Lujan Grisham (NM) emerged victorious. 
Drug policy reform also played a major role in scores of local, state and federal races all over the country. The most powerful marijuana reform opponent in the House of Representatives, Pete Sessions of Texas, lost to Colin Allred, a supporter of marijuana reform.   
“The public has long believed that drug use should be treated as a health issue, not as a criminal issue. It’s encouraging to see so many political candidates finally getting on board,” added McFarland. “The momentum to end the drug war took a significant leap forward today.”

Source: dugpolicy.org

Mexico Moves Toward Major Rollback of Marijuana Prohibition

Mexico’s next interior minister plans to submit a bill to create a medical marijuana industry and allow recreational use, the Congress website showed on Tuesday, in what would be a big step by the incoming government to shake up the country’s drug war.

Senator Olga Sanchez, Mexican President-elect Andres Manuel Lopez Obrador’s choice for interior minister, told Reuters the bill would be presented this week in Congress.

If the bill passes, Mexico would join Canada, Uruguay and a host of U.S. states that permit recreational use of the drug and allow its commercialization. It would be one of the most populous countries to roll back prohibition.

Mexico, which banned marijuana in the early 20th century, is still a major supplier of illicit weed to the United States. It has been racked by a decade of conflict between cartels over supply routes for heroin, cocaine and synthetic drugs to its northern neighbor.

Lopez Obrador, a veteran leftist who takes office Dec. 1, has promised major changes to Mexico’s approach to the war on drugs, suggesting a negotiated peace and amnesty for some of the very people currently targeted by security forces.

In the 26-page bill posted on the Congress website, Sanchez wrote that Mexico’s cannabis prohibition has contributed to crime and violence, adding that in the 12 years since Mexico launched a war on cartels, 235,000 people have been killed.

“The policy of prohibition arises from the false assumption that the problem of drugs should be tackled from a penal focus,” wrote Sanchez, a former Supreme Court magistrate.

“The objective can’t be to eradicate the consumption of a substance that’s as prevalent as cannabis is,” she added.

Although the coalition led by the president-elect’s National Regeneration Movement (MORENA) party has a majority in both houses, it includes a conservative party that has in the past opposed some socially progressive policies, meaning the bill may face hurdles.

“It will be presented on Thursday, without fail,” Sanchez said. Legislation in Mexico’s two-house Congress often moves slowly, and after being submitted, the bill would have to pass committees before reaching a vote.


The bill would permit companies to grow and commercialize marijuana. Individuals would also be allowed to cultivate plants for private use, as long as they register in an anonymous government listing and produce no more than 480 grams (1 lb) of marijuana per year.

Smoking pot in public places would also be permitted.

Cannabis producers would be banned from hiring minors or selling the drug to them.

Mexico’s Supreme Court last week ruled that an absolute ban on recreational use of marijuana was unconstitutional, effectively leaving it to lawmakers to regulate consumption of the drug.

Support for legalization has strengthened in Mexico in recent years as violence soars. Former Mexican President Vicente Fox has been an outspoken advocate for legalization, joining the board of Khiron Life Sciences Corp in July.

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Khiron is one of several listed Canadian weed companies. Stocks in the sector have been on a tear over the past year in anticipation of strong demand following last month’s legalization.

Fox also joined the board of Hightimes Holding Corp, which owns the marijuana enthusiast magazine High Times, earlier this year.

Since 2006, Mexico has used military might to fight drug gangs, which have splintered into smaller groups battling over trafficking routes and territory.

The country saw more than 31,000 murders last year, the highest total since modern records began, according to government data.

Source: Reuters

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