Ask the Lawyer: With marijuana legal, employers question drug testing workers

Q: After a highly qualified candidate was disqualified for testing positive for THC on a pre-employment drug test, the human relations department of our business suggested we scrap the test completely. What’s the rationale behind taking such a drastic step?

A: The rationale for doing away with pre-employment screening tests — or at least testing for THC, the active ingredient in marijuana — is what you just experienced: These tests can deny employers the skills of well-qualified workers who have not done anything illegal.

Michigan is now one of 23 states in which the recreational use of marijuana is legal for people 21 and up. (Only two of our neighboring states, Illinois and Minnesota, have followed suit; Indiana and Ohio allow medical marijuana use only.) However, when Michigan voters gave the thumbs up in 2018 to a ballot proposal legalizing recreational marijuana use, the law they approved specifically allowed employers to continue to follow existing workplace drug policies, and to test and fire (or, as in your case, not hire) those testing positive for marijuana use.

But being allowed to have a strict workplace drug policy and actually having one are two different things. Many employers are re-evaluating their drug policies.

Firing a worker for testing positive for pot, without more, makes about as much sense as firing workers on Monday because they were out drinking with friends Saturday night. But while a worker who was partying at a bar over the weekend would not test positive for alcohol when he showed up sober and ready to work on Monday, his equally sober counterpart, who smoked a doobie Saturday, would test positive for pot. In fact, a test can show a positive result for marijuana three months or more after use.

And use of marijuana off-the-job is (generally) not a crime, and, according to some studies, is not likely to affect work performance.

The fact that marijuana use is legal is just part of the reason many businesses are taking a step back. According to one report, roughly 43% of young adults, age 19 to 30, reported using marijuana in 2021, while 29% reported using it in the past month. When workers are hard to find, many employers have decided it makes no sense to reduce the pool of applicants based only on legal use of a formerly controlled substance.

After 151 applicants were ruled ineligible for state jobs based on pre-employment testing for marijuana — the highest number of such disqualifications in five years — the State of Michigan decided enough was enough. On July 12, the Michigan Civil Service Commission voted unanimously to eliminate the pre-employment screening for marijuana for state office staff, and for positions that don’t require driving, operating heavy machinery or handling heavy equipment. Marijuana testing will remain in place for a number of other jobs, including health workers, Department of Corrections officers, and state police.

While marijuana testing will disappear for many state jobs, new hires must still pass tests for controlled substances such as cocaine, PCP and amphetamines.

Not every employer who might want to ditch screening workers for THC can do so. Marijuana — along with heroin and LSD — is still a controlled Schedule I substance under federal law, and federal agencies, federal contractors or business that receive grants from the federal government are required to establish and maintain a drug-free workplace. Truck drivers are also subject to testing, based on a federal law.

Deciding to do away with pre-employment testing for marijuana does not mean employers must put up with workers who are stoned on the job, any more than they must tolerate employees who show up drunk. If an employee is seen using marijuana at work, or if an employer has a reasonable suspicion that a worker is under the influence, a drug test can be administered. Employees who test positive after conduct that shows they were under the influence while at work can (and probably should) get the sack.

Troy Attorney Daniel A. Gwinn has a practice focused on employment law, civil rights litigation, probate, and trusts and estates. Contact him with your legal questions at daniel@gwinnlegal.com or visit the website at gwinnlegal.com. “Ask the Lawyer” is informational only and should not be considered legal advice.

03

What Maci Bookout and Ryan’s Parents Learned at Al-Anon Meetings Amid His Legal, Drug Issues

With Ryan Edwards in jail when the most recent episode of Teen Mom: The Next Chapter was filmed, his parents and his ex Maci Bookout turned to Al-Alon for support.

The organization is meant for relatives and friends of those struggling with alcoholism and addiction, who can lean on and share their similar experiences with one another. After costar Jade Cline and reunion host Dr. Drew Pinsky both suggested Maci try it out, she finally took them up on the advice on Tuesday’s new hour — as did Ryan’s parents, Jen and Larry.

“It just seems like it’s the time to try, wish me luck,” Maci told her costars during a group FaceTime call at the top of the hour.

Maci Bookout Breaks Down After Ryan’s Overdose on Teen Mom, Reveals Son Bentley’s Anger View Story

“I’m really just trying to get the anxiety of Al-Anon and ignorance to it over with and out of the way,” she later confided in her husband, Taylor McKinney. “I want to figure out if this can help me with processing and not bottling it up and being hurt and angry all the time.”

“I’m not an addict, but dealing with one, you never know what to do,” she added.

Maci went to her first meeting virtually, admitting she spent most of the session with her camera turned off while she eased herself into it. After it was over, she told Taylor that it was “good” and “very not scary.”

“Everything that was read or shared, I learned from, like did they know I was coming today?!” she joked, before sharing what she really took away from the first session.

“It’s not my responsibility to fix the wrongdoings that Ryan’s done to [their son] Bentley. I can’t. I’ve tried a lot of times to do exactly that and only been let down that I couldn’t or confused or angry, wondering what I was doing wrong,” she told Taylor. “It’s almost like reworking my brain to be more gentle with myself. It’s hard to do, but if it were easy, everyone would do it.”

She added that she planned to attend “lots more” meetings in the future, saying she wished she started going to them “a long time ago.” She went on to call Al-Anon a “game changer” for her, saying it really made her “stop and sit” with herself.

Maci Bookout Reveals Where She Stands with Ex Ryan Edwards Amid Prison Sentence, Legal Woes (Exclusive) View Story

Ryan’s parents were seen preparing for their first meeting as well, which they attended in-person. Before going to the session, Jen said she was doing it because she knew she couldn’t “let [Ryan’s] life control mine forever.”

The pair said they were both happy they went and said they would definitely go again in the future after the meeting was over.

“Did you notice too, a lot of them said they tried to fix the problem?” asked Larry, as Jen acknowledged that was her big “problem.” They learned that, “sometimes you have to step back,” said Larry.

“You do feel disappointment and sometimes hopelessness and it does affect how we live our everyday lives,” added Jen, as they realized they also need to take time for themselves.

“Ryan’s got an illness and I can’t change it so I try not to dwell. I can’t think about it all day either. I gotta be here for you,” Larry told his wife. “I can’t just shut down on you. We can’t do it by ourselves, we can’t get through this by ourselves.”