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Aug. 10, 2022

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Workplace pot policies shift law, culture, federal rules

3 Photos
Budtender Kelley Dearing helps customers Timothy Benison and Sharon Stricklan with their purchases at the Greenhouse, a recreational and medical marijuana dispensary, in Walled Lake, Michigan on June 7, 2021.
Budtender Kelley Dearing helps customers Timothy Benison and Sharon Stricklan with their purchases at the Greenhouse, a recreational and medical marijuana dispensary, in Walled Lake, Michigan on June 7, 2021. (Daniel Mears/The Detroit News/TNS) Photo Gallery

Recreational use of marijuana for the past two years is legal — and rising — in Michigan, prompting some employers to loosen their drug policies even as industrial giants like Detroit’s automakers continue to bar pot from the workplace.

Amid a tight labor market and recovering economy, Inc. earlier this month said it will no longer screen for marijuana use for jobs that aren’t transportation related. And a local grocer, Busch’s Fresh Food, says it hasn’t drug tested in recent years — recognition that private use is considered just that so long as it stays out of the workplace.

“Now it’s essentially decriminalized in Michigan,” said Wendy Block, vice president of business advocacy for the Michigan Chamber of Commerce. “That means people have access through retail settings and therefore are more likely to try it or to be people that regularly use it similar to alcohol.

“Outside of heavy machinery and other situations where an employer can’t afford to turn a blind eye to drug use or alcohol use or any other things,” she added, “most employers, if they have the opportunity, are just taking advantage of whatever talent they can attract their way.”

Still, the delicate interplay between conflicting federal and state laws makes for a thorny legal and human resources thicket that some employers don’t want to touch, despite glaring contradictions. Detroit’s automakers, for example, have said they haven’t changed their policies, meaning would-be plant workers who fail tests for marijuana would not be hired.

“Everyone had questions, what should they do,” said attorney Deborah Brouwer, the co-managing partner of Nemeth Law, P.C., a Detroit-based management-side labor and employment law firm. “They just roll with it now. Those policies are in place. They made the decision.

“‘We’re not making any exception for testing positive for marijuana and it’s on our list, we have this policy and we’re going to just go forward with it and enforce it the way we were if you tested positive for any other drugs.’”

Easing up

Some say it’s only a matter of time before more employers ease up on their policies, particularly in a tight labor market. Amazon is one large company changing its policy on drug testing. In Michigan, Amazon employs more than 13,500 across its facilities, including fulfillment and sortation centers in Livonia, Shelby Charter Township, Romulus and Brownstown Township. There are also Amazon delivery stations in Romulus, Wixom and Hazel Park.

“In the past, like many employers, we’ve disqualified people from working at Amazon if they tested positive for marijuana use,” Dave Clark, CEO of Amazon management group Worldwide Consumer wrote in a blog post. “However, given where state laws are moving across the U.S., we’ve changed course.

“We will no longer include marijuana in our comprehensive drug screening program for any positions not regulated by the Department of Transportation and will instead treat it the same as alcohol use. We will continue to do impairment checks on the job and will test for all drugs and alcohol after any incident.”

At least one locally based company has loosened up their policy on marijuana use. Todd Robinson, director of marketing for Ann Arbor-based Busch’s Fresh Food market, said the company began to pull back on drug testing since the legalization of medical marijuana in Michigan in 2008. The company employs 1,700 people across 16 stores in Michigan.

“Now that it’s a legalized substance we view it the same as we do alcohol,” he said. “What you do on your own time is none of our business, but you can’t let it impair your work. People who come to work who are impaired … with alcohol or drug issues are going to be severely punished. Beyond that we don’t check to see how many drinks you have on the weekend or how much do you smoke. We don’t get into all of that. We make sure that people are coming to work sharp and without being under the influence of anything.”

Robinson said there’s an occasional employee who shows up impaired on the job, whether it’s marijuana or alcohol. They’re disciplined accordingly, he said.

“Discipline could be being written up, or depending on how bad the infraction is, being let go,” he said. “As long as they’re showing up to work sober and they’re performing their job function there’s really no need for us to be concerned about it. From our prospective we just care that the employees show up, do their job and can interact with the public appropriately. That’s our concern.”

Following the feds

For some companies, their policies are tied to federal laws. For example, the transportation industry is required to test employees, and federal contractors and federal grantees must maintain drug-free workplaces.

“What happened with employers with first medical marijuana, but really with recreational marijuana, is there’s a lot of employers that have zero tolerance drug policies because they’re required to, because they’re dealing with heavy machinery, truck drivers or that’s just their business model,” Brouwer said.

DTE Energy Co. is among companies maintaining drug-free policies.

“At DTE, given the importance of the safety of our employees and our customers, we strictly prohibit the use, possession, sale, or being under the influence of marijuana in the workplace,” the company wrote in a statement. “We do not plan to change our company’s drug-free policy.”

Marijuana use has increased among the workforce in the state.

According to New Jersey-based Quest Diagnostics drug testing company, in Michigan drug tests for substances including marijuana remained above the national average in 2020 at 5.5% compared with 4.4% nationally. The firm said that there was an increase nationally of marijuana use during the pandemic with research showing that in the U.S. general workforce, marijuana positivity increased from 3.1% in 2019 to 3.6% in 2020 via urine testing, 9.1% in 2019 to 12.3% in 2020 in oral fluid testing and 7.1% in 2019 versus 8.7% in 2020 via hair testing.

Jerry Millen, owner of the Greenhouse in Walled Lake, said he thinks the federal government will catch up to local laws making it more mainstream. He said that some customers didn’t want to get a medical marijuana card, but with the legalization of recreational marijuana they feel freer to come into the shop to purchase.

“I feel like my goal is to break down barriers and make cannabis normalized,” Millen said. “One of my missions before I move on is to help cannabis become accepted mainstream. It’s only a matter of time for our federal government to finally realize that the war on drugs didn’t work. Especially the war on marijuana is crazy and they’re missing out on a lot of tax revenue that’s being eaten up by the black market.”

Advocates for marijuana reform are encouraging companies to focus on impairment on the job, not cannabis use. Impairment apps, including Druid and AlertMeter, can test impairment in the workplace.

“What somebody did on the weekend is not relevant,” said Matthew Abel, an attorney with Cannabis Counsel Law Firm and a legal committee member for NORML, a nonprofit organization that advocates for marijuana reform. “We don’t want people who are impaired on anything working on the job, but the testing people for cannabis is a blunt instrument for doing that.

“In fact, it generally doesn’t tell you if someone is impaired. It tells you if someone has a chemical in their system through blood test or urine. People can have that in their system and not be impaired.”

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