Order Reprints

By Karen Gentry | MiBiz
This e-mail address is being protected from spambots. You need JavaScript enabled to view it

WEST MICHIGAN — Even though an employee may have a medical marijuana card in Michigan, this doesn’t give that employee the right to carry marijuana or to be under the influence of marijuana at work.

That was one of the main messages of James Helminski, an attorney with Bleakley, Cypher, Parent, Warren & Quinn PC in Grand Rapids, who spoke at a recent Leadership Oasis seminar in Battle Creek. The seminar was hosted by HelpNet, an employee assistance organization under the Battle Creek Health System.

The Michigan Medical Marijuana Act passed by voters in 2008 is a patients’ rights type of law legalizing medicinal use and protection for users with certain types of debilitating conditions such as cancer, nausea or Alzheimer’s disease.

“The focus of the law wasn’t to address employees’ rights at the workplace,” Helminski told MiBiz. “The law prohibits the ingestion of marijuana in the workplace or working while under the influence of marijuana.”

The new law poses a lot of questions for employers with issues that may have to be settled by the courts. An employee with a medical marijuana card may claim he has the right to be in possession of marijuana at work. Routine drug screening may come into question with the new law, as well as discrimination complaints if someone with a medical marijuana card is not hired.

There may also be liability issues if employers are aware of illegal substance use and federal funding that requires a drug-free policy. There could be other considerations such as how the law interacts with other federal and state laws and regulations such as the Civil Rights Act, workers’ compensation or the Americans with Disabilities Act.

Must an employer make reasonable accommodations for marijuana users much like a diabetic employee?

“It’s a very sensitive topic, obviously, because this is sort of virgin territory,” said Dan Fry, with the HelpNet Employee Assistance Program, who brought in Helminski to speak to HR professionals.

A Battle Creek case has brought the issue to the public forefront. Joseph Casias, a Wal-Mart associate, was granted a medical marijuana card to control pain he suffers from sinus cancer. After injuring his knee at work, he was given a drug test in accordance with Wal-Mart policy. He was terminated after he tested positive. The American Civil Liberties Union has taken on the case and is suing Wal-Mart.

Helminski said the Medical Marijuana Act doesn’t change the fact that marijuana is still an illegal substance under Michigan and federal law and employers can enforce zero tolerance policies.

“A fundamental right of an employer is the ability to have a drug-free workplace in order to ensure a safe and hazard-free workplace,” Helminski said.

He said everyone agrees that marijuana use impacts complex motor skills, cognitive functions and dexterity, but it’s hard to “try to quantify how much usage is causing how much impact.” The testing methods for alcohol make it easy to determine impairment, whereas it’s difficult to determine whether someone is under the acute influences of marijuana. Helminski said that better testing methods whether someone is under the acute affects of marijuana will be developed.

Helminski said Michigan’s law is more liberal and the language of the law broader compared to other states with medical marijuana laws.

“Other states have language in their act that prohibits criminal prosecution under some circumstances for qualifying patients,” Helminski said. “Michigan has gone one step further and inserted additional language into the act that also limits or prohibits civil penalties or disciplinary action by a business, occupational or professional licensing board or bureau.”

Helminski advises business owners and HR professionals to review, analyze and draft company policies to ensure a safe workplace and said there’s ample support in the law to provide drug-free policies despite the Michigan Medical Marijuana Act.

Fry also recommends that employers revisit their policies and consult with their legal team. He said the courts have ruled many times that safety trumps everything else. Fry said employers need to be very cognizant of having a safe workplace while at the same time making sure employees aren’t defamed or wrongfully discharged.

Fry noted municipal leaders also have questions about the new marijuana law related to zoning ordinances when citizens want to open up medical marijuana businesses.

  Order Reprints

TAGS:

• helpnet
• james helminski
• marijuana
• medical marijuana card
• west michigan