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A Fact Sheet on Michigan’s Newly-Passed Marihuana Ballot Initiative

On the night of November 6, 2018, Michigan voters passed the ballot initiative known as the “Michigan Regulation and Taxation of Marihuana Act” (MRTMA) to allow the limited use and possession of marihuana. As a result, the possession and use of marihuana (up to 2.5 ounces) within a personal residence by adults over the age of 21will be legal. The proposal will also allow regulated commercial production and distribution of marihuana.

The proposal will not have a significant impact on Michigan workplaces because the act specifically allows employers to continue to enforce policies that prohibit marihuana use in the workplace and impose discipline (including termination of employment) on employees who violate a workplace drug policy or are working under the influence of marihuana.

In Michigan, passed ballot initiatives come into effect 10 days after election results are officially certified. Thus, the MRTMA could become effective as early as the middle of December 2018. The state legislature and Michigan’s Department of Licensing and Regulatory Affairs (LARA) are responsible for determining when sales may begin.

While the act allows the recreational use of marihuana, it also has many restrictions and limitations. In anticipation of the upcoming effective date of the newly-passed initiative, here is a fact sheet that covers the relevant aspects of MRTMA that may affect employers.

MRTMA Fact Sheet

The stated purpose of the law is to make marihuana legal under state and local law for adults over 21 years old. In particular, the act:

  • Prevents arrest and penalty for personal possession and cultivation;
  • Makes industrial “hemp” legal under state and local law;
  • Controls the commercial production and distribution of marihuana using licenses; and
  • Regulates and taxes commercial production and distribution of marihuana.

The act specifically does not authorize the following activities:

  • Operating a vessel or vehicle under the influence;
  • Possessing, transferring, or distributing marihuana to persons under the age of 21;
  • Cultivating marihuana by persons under the age of 21;
  • Consuming marihuana in a public place or smoking where prohibited by a land owner, occupier, or manager;
  • Cultivating the marihuana plant where it is visible to the public (without binoculars); and
  • Possessing accessories or consuming marihuana on the grounds of public or private schools or correctional facilities.

The act does not limit the privileges or rights under the Michigan Medical Marihuana Act (MCL 333.26421 – 333.26430).

The act specifically does not require employers to permit, accommodate, or allow marihuana use in workplaces or on employers’ properties. Specifically, the act:

  • does not prevent or limit the enforcement of workplace drug policies or policies that prohibit employees from working under the influence of marihuana;
  • does not prevent an employer from refusing to hire, discipline, or discharge an employee because of a violation of a workplace drug policy or because he or she was working under the influence of marihuana.

The act allows a person to prohibit the use, consumption, cultivation, distribution, or processing and/or display of marihuana accessories on his or her property.

  • Nevertheless, the law restricts a landlord’s ability to prohibit a tenant’s use of non-smoked consumables.

The act allows municipalities some freedom to prohibit or limit marihuana establishments.

Remember, federal law still considers marihuana use and/or possession a felony!

  • Most federal laws and regulations, such as those of the U.S. Department of Transportation governing commercial driver’s license (CDL) drivers, prohibit the use of marihuana.

In light of the new law, employers may want to review and update their policies to clearly identify what is prohibited in the workplace or while performing work duties.

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Thomas R. Paxton, Employment lawyer, Ogletree
Of Counsel

Since 1984, Mr. Paxton has tried over thirty cases involving most aspects of employment including age, sex and race discrimination; medical leave and whistleblowers for employers, insurers, and municipalities.  He has appeared in federal and state trial and appellate courts on behalf of employers such as manufacturers, financial services industries, trial lawyers, judges, arbitrators, counties, cities, towns and townships.

Mr. Paxton also has extensive experience negotiating and administering labor agreements for private and public employers before arbitration...

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