Last month we talked about Drug-Free Workplace Policies After Legalization and discussed the evolving landscape of workplace policies after cannabis was legalized in Michigan. Many private employers are now considering whether revise their employee handbooks and drug testing policies, and if so, what those changes may look like. But what if you are a cannabusiness? Is it reasonable have a “drug-free” work policy for a business that is in the marijuana industry? How should you craft one that doesn’t discriminate against your employees, but also protects you from liability?
First, it’s important to note that cannabis companies have the same rights as other private employers under Michigan law. Generally, private employers enjoy broad discretion in how they enforce their workplace policies regarding drug usage and testing procedures. If an employer wishes to have a conservative drug testing policy in their workplace, they can continue to enforce a prohibition on cannabis usage and cite the federal Controlled Substances Act as the basis for their prohibition. Employers can also limit the testing to any illicit substance (not including marijuana), or test only on suspicion of being under the influence while in the workplace or after a workplace incident report has been filed. Additionally, there is no legal requirement for any private company to have a drug-free workplace policy, so an employer could always choose to not include one as part of their policies and procedures.
So what makes sense for cannabusinesses? This industry is in a unique position because the level of regulation associated with these licensed businesses encourages employers to enforce strict policies and protocols, but the workplace culture may lend itself to a more relaxed view.
When thinking about creating a drug testing policy, consider your business model and the culture you want to create. Some marijuana license types make sense for a no-tolerance approach to cannabis usage – it’s obviously a safety concern for secured transporters to be under the influence, as well as employees who work with the heavy machinery used by processors and safety compliance centers. These employers may consider completely banning the consumption of marijuana during the course of employment, or simply prohibit being under the influence of cannabis during work hours.
Other marijuana businesses, such as provisioning centers, may anticipate their employees to use personal knowledge or recommendations to assist consumers. For these employers, there is an appeal to not have a drug-free policy at all. However, I would suggest that any individual working under the influence in the workplace is a liability and could lead to significant ramifications. An employee who is under the influence of marijuana could accidentally lead to an inaccurate entry on the state’s seed-to-sale tracking software, resulting in a discrepancy between sales and inventory. A budtender who is advising consumers on which product is better for a medical condition may provide inaccurate or incomplete information. To reduce the possibility of error or liability, we encourage cannabusinesses to consider drafting a drug-free workplace policy that prohibits employees from being under the influence while “on the clock”.
Additionally, a drug-free policy is only as strong as the enforcement of it. To avoid potential claims of discrimination, employers have to be careful to test randomly, equally, or for good cause. There are several methods to apply this – employers could set up a random testing schedule, require all applicants to pass a drug screen prior to furnishing an offer of employment, or require testing as part of a workplace incident investigation. By choosing a drug-free workplace policy that fits the business’s needs and is neutral in application, a cannabusiness can significantly reduce error, liability, and claims of discrimination based on selection for drug testing.