The advent of legal medical marijuana in many U.S. states, including Michigan, has brought some new challenges for employers.
Although employers may still remain committed to maintaining drug-free workplaces, determining whether an individual is intoxicated on the job or whether a positive drug screen is just a throwback to the previous weekend's party can be a challenge when it comes to fat-soluble substances like THC. This is especially true in Michigan, where there are no specific limits on pre-employment drug testing or random on-the-job testing.
Read on to learn more about how employment-based drug testing is regulated in Michigan and some of the legal claims or defenses that may be available if you've suffered adverse employment consequences after a drug screen.
Michigan's Unique (Lack of) Drug Testing Laws
Many states have set forth laws and regulations that specifically govern when, how, and why employers can drug test employees. These laws are designed to protect employers' ability to maintain a drug-free workplace while also giving employees, many of whom may not want to disclose their medication schedule with their employers, some privacy.
However, Michigan is one of just a handful of states that places no limits on workplace drug testing other than those already codified in other laws, including federal laws. This means that Michigan employers tend to have a bit more freedom on the when, why, and how of drug testing their employees.
Claims or Defenses When Drug Testing Interferes With Employment
Although Michigan doesn't have any laws that specifically restrict an employer's ability to drug test their employees, there are still some legal claims and defenses employees may raise when they feel a drug test (or any adverse employment actions that result from this drug test) violates their rights.
First, those who are legally prescribed a drug to treat a legitimate medical condition may have a claim under the federal Americans with Disabilities Act (ADA). This act prohibits employers from discriminating against employees on the basis of a protected disability. This discrimination can include discipline or termination on the basis of a failed drug test ifthe drug test was failed because of a legally prescribed substance.
The ADA does not protect employees who are terminated after testing positive for non-prescribed drugs, recreational drugs, or other drugs that are not intended to treat a disabling condition. And although medical marijuana is legal in Michigan, because of its continued illegal status under federal law, the ADA's protection against disability-related drug testing does not extend to marijuana testing.
However, there are a few other federal laws that may provide protection to employees who feel they're unlawfully singled out for drug testing, even those who test positive for marijuana. The Civil Rights Act of 1964 prohibits discrimination on the basis of race, sex, age, ethnicity, and religion, among other protected classes.
Employers who make hiring, firing, or disciplinary decisions on the basis of a protected characteristic can be subject to steep civil penalties; employees who have suffered as a result of these prohibited actions can receive back pay or be reinstated into their prior positions.
This means that employees who observe that those selected for "random" drug testing fit a specific (protected) demographic or who are aware that only certain employees are required to undergo pre-employment drug testing may be able to raise an equal protection claim.
These claims aren't easy to litigate, and employees may have an uphill battle when it comes to proving that an employer acted with illegally discriminatory motives. By contacting an attorney to discuss your case, you'll have a much better idea of its strengths and weaknesses and whether it's worthwhile to proceed.