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Seeing Through the Haze: Marijuana and the Workplace - THC "Breathalyzers"

Marijuana use by Michigan employees is on the rise. Many employees mistakenly believe that a Michigan Medical Marijuana card gives them the absolute right to use marijuana. While Michigan law affords some rights to individuals to use medical marijuana under certain circumstances (marijuana use remains illegal under federal law), employees do not have the right to work under the influence of marijuana.

How can an employer determine whether an employee is under the influence of marijuana while at work?

Existing tests, such as hair, blood, urine and oral fluid tests, are able to detect an employee's marijuana use, but they cannot determine whether an employee is currently under the influence of marijuana. For example, an oral fluid test may confirm that an employee used marijuana within the past few days, but it cannot confirm whether the employee was under the influence of marijuana while at work. Other tests can detect even older marijuana use.

Are there any other tests available?

We are aware of several companies which are working to develop tests designed to confirm marijuana use within a few hours prior to the test. This time frame is significant because the "high" from marijuana use is reported to last approximately two to three hours. It appears that some of these devices will be similar to a hand-held alcohol breathalyzer. In fact, one device is purportedly capable of detecting alcohol and marijuana in the same test. If these devices operate as planned, they may prove to be a very useful tool for employers in the future.

Are the devices available now?

At the present time, the devices do not appear to be widely-available, and more importantly, we are not aware of any test results being admitted as evidence in any legal proceedings. We will continue to monitor the development and use of these devices. In the meantime, if an employer suspects that an employee is at work under the influence of marijuana (even if the employer obtains one of these devices), they should document the reasons why they believe the employee is under the influence (i.e., smell, slurred speech, glassy eyes, unusual behavior, etc.). After documenting their observations, the employer should take action pursuant to their written workplace drug policy to ensure the safety of their employees and the public.

© 2019 Varnum LLP

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About this Author

Brett Rendeiro, Litigation lawyer, Varnum
Counsel

Brett is a lead litigator in the firm’s Novi office. Brett began his career in Grand Rapids as a part of Varnum’s nationally-recognized Employment Law Team and has evolved into a trial advocate with substantial experience in complex commercial, real estate, lending and employment disputes. In 2005, Brett assisted the firm in establishing its southeast Michigan office. Brett is also a member of the firm's Recruiting and Retention Committees.

Brett has first-chair trial experience and has obtained several multimillion dollar judgments on behalf of clients.

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