A coalition seeking to legalize the recreational use of marijuana in Michigan has gained approval to get the issue on the 2018 general election ballot. If approved, Michigan would be the ninth state to legalize marijuana, joining Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington.
The group pushing the initiative — the Coalition to Regulate Marijuana Like Alcohol (“Coalition”) — has ties to groups pushing this issue nationally, including the Marijuana Policy Project. The Coalition has indicated its intent to raise $8 to $10 million to get the measure passed in November 2018.
The ballot proposal would:
- Allow adults 21 and older to possess, use and grow certain amounts of marijuana.
- Tax marijuana sales with a 10 percent excise tax at the retail level and the 6 percent sales tax.
- Split those revenues with 35 percent going to K-12 education, 35 percent to roads, 15 percent to the communities that allow marijuana businesses in their communities and 15 percent to counties where marijuana businesses are located.
- Allow local governments, or electors via ballot proposal, to limit or ban marijuana businesses.
- Restrict purchases of marijuana for recreational purposes to 2.5 ounces, but allow individuals to keep up to 10 ounces of marijuana in their homes and cultivate up to 12 plants for personal use.
- Require the Michigan Department of Licensing and Regulatory Affairs to regulate and license marijuana businesses, ranging from growers, transporters, testers and dispensaries.
Where We Stand:
The Michigan Chamber opposes the 2018 ballot proposal to legalize the adult recreational use of marijuana as it would threaten the ability of employers to maintain a safe and drug-free workplace. While traditionally considered a “social” issue, the Michigan Chamber cannot overlook the specific language in the 2018 ballot proposal and the fact that it would create any number of issues for employers and the workplace and encourage lawsuits to be filed against employers.
Specifically, our concerns include:
- No explicit statutory protections for employers. The proposal raises a host of questions related to drug-free workplace policies and employer rights. Because the proposal lacks specificity on the answers to these questions, courts would be the final arbiter in interpreting how businesses will be affected by legalization. For example, will a Michigan employer be able to:
- Enforce drug-free workplace policies on and off the job;
- Terminate an employee who tests positive for marijuana;
- Define impairment regardless of whether an on-demand definitive test is ever developed;
- Terminate employees for cause due to a positive drug test without eligibility for unemployment insurance (UI) benefits; and/or
- Deny workers’ compensation (WC) benefits if a workplace injury was caused by the injured employee’s use of marijuana?
- Open-ended liability. Employers have a responsibility to protect all employees. Under the federal Occupational Safety and Health Administration, employers are required to provide their employees with a place of employment that "is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” Failure to do so opens employers to liability and lawsuits. Yet, there is no way to regulate marijuana in the workplace outside of current drug testing protocols. Furthermore, Michigan law does not remove an employer from payment of workers’ compensation in instances where a workplace injury was caused by an injured employee’s use of drugs or alcohol.
- Marijuana is still illegal under federal law. Entities that receive federal funds or are regulated by the US Department of Transportation will still be subject to testing consistent with the federal Drug Free Workplace Act. This Act requires drug-free workplace policies for marijuana and other drug use.
- Higher number of failed drug tests. According to a September 2014 analysis by Quest Diagnostics, American workers are increasingly testing positive for drugs. Of the 8.5 million analyses of urine drug tests in the United States, marijuana continues to be the most commonly detected illicit drug, up 1.7 percent in 2013 from 1.6 percent in 2012. In comparison, Colorado positive test rates for marijuana were up 20 percent between 2012 and 2013. Washington positive test rates were up 23 percent for the same period. (Colorado and Washington voters legalized marijuana in 2012.) Because many employers rely on drug-free workplace policies and pre-employment drug screening, legalization could create retention and hiring challenges for many employers.
- No impairment test. Given the lack of an on-demand impairment test for marijuana, employers are forced to rely solely on blood and urine tests, neither of which can reliably provide information about present impairment. The lack of an impairment test will create significant human resources dilemmas for employers if marijuana becomes legal in Michigan.
- Reputational issues for the state. Legalization creates uncertainty for businesses. If Michigan becomes the ninth state to legalize marijuana, it will harm the reputation of the state as a destination for business growth.
- No way to make the language “bulletproof.” Although the ballot language could be improved by specifying that it does not regulate private employment or employment-related programs and liabilities (e.g., UI, WC, lawsuits, etc.), there is no way to make the language completely secure or protect employers and workplace safety in all scenarios.
None at this time.
Is Legal Marijuana the Next Big Tabacco? Implications for Employers and Workplace Health, LearnAboutSam.org, April 2017
- Views ‘High’ stakes for employers dealing with evolving cannabis laws, Employee Benefit News, June 1, 2018
- Top 5 Workplace Marijuana Misconceptions: Seeing Through the Haze, Workforce Magazine, August 28, 2017
- Companies struggling to find workers because of failed drug tests, WILX TV 10, July 31, 2017
- Michiganders could keep enough marijuana for 880 joints under proposal, MLive, July 27, 2017
- Michigan marijuana campaign brings together activists, moneyed investors, tobacco dealers, Detroit Free Press, July 15, 2017
- Legal pot and car crashes: Yes, there's a link, CBS News, June 22, 2017
- Legalized marijuana turns Colorado resort town into homeless magnet, Fox News, May 17, 2017
- First-time marijuana use in college at highest level in three decades, University of Michigan, April 20, 2017