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A recent state-commissioned report found blood tests to determine whether someone recently smoked weed to be an inadequate measure of impairment. Still, many area public and private employers are using those same tests on their staff — and firing employees who test positive for THC.
It’s a totally legal practice, but it raises the question: If not intoxication, what exactly are these tests meant to find?
“Whether or not they consume marijuana regularly, it still shows up on those tests regardless of whether they’re impaired,” explained Margeaux Bruner, an executive at the Michigan Cannabis Industry Association. “I think employers are using it more like a character reference, not to actually gauge impairment at that moment.”
Bruner also serves on the state’s Impaired Driving Safety Commission, a workgroup formed under Gov. Gretchen Whitmer tasked with determining whether state law can set a driving limit (much like alcohol) for THC in the bloodstream. The short answer: It can’t. The tests don’t accurately measure impairment at all.
The idea: Weed metabolites swim around the body for several days after ingestion and could trigger a positive drug test weeks later. The way it is metabolized can differ significantly from person to person — especially between casual and chronic smokers.
The findings create a potential legal wrinkle within the state’s zero-tolerance approach to drugged driving, but they also raise questions over employers using those same tests. The law allows them to test their staff as they see fit. But industry advocates question whether they should.
“Employers need to be rational with their thinking on this,” explained Josh Hovey, communications director for the Michigan Cannabis Industry Association.
Hovey said it’s “reasonable” for companies required by federal law to test for drugs. But others “should think long and hard about whether to drug screen, particularly as a condition of employment.”
East Lansing attorney and marijuana entrepreneur Jeff Hank labeled employment testing for cannabis “absurd” and an “affront to personal liberty and privacy.” He suggested that only certain public safety-oriented jobs — like airline pilots or police officers — should be subjected to marijuana screening.
“That’s the equivalent of testing employees to see if they’ve had a beer over the weekend and firing them for it,” added Denise Pollicella at Cannabis Attorneys of Michigan. “It makes no sense from a policy standpoint. Employers are going to have to think about these ridiculously strict standards now that it’s recreationally legal.”
Laws that guide recreational marijuana in Michigan allow pre-screening ahead of a job offer, random testing or mandated tests after a workplace incident. Employers can use their discretion on the results.
Federal law mandates that governments, businesses and organizations with federal contracts or grants provide for a drug-free workplace. Interpretation on adherence can vary, but many employers in Greater Lansing (like the State of Michigan and Michigan State University) use the law to justify routine testing. Some of the largest employers in Lansing — particularly those without federal contracts — weren’t able to offer much of an explanation for sticking with tests after pot was legalized recreationally last November. They just do them.
Sparrow Health System operates a zero-tolerance policy toward drug use among all of its nearly 8,000 employees in Lansing — and officials there don’t expect that to change with the new marijuana laws. The goal: “Extraordinary patient care, without impairment.” A spokesman declined to elaborate.
The city of Lansing tests employees “across the board” before they’re hired, including for THC, said Human Resources Director Linda Sanchez-Gazella. She noted the city remains a “drug-free workplace” even after marijuana was legalized. Additional questions about city drug testing policies were left unanswered.
East Lansing and Ingham County, in contrast, only test certain employees that drive or serve in public safety functions in order to adhere to those federal restrictions.
“We don’t test a lot of employees for hiring purposes, but we can drug test upon reasonable suspicion or an accident,” added Ingham County Human Resources Director Sue Graham. “We don’t do other screenings because there’s no reason to do so. It’s on the basis of necessity. We just don’t need to test these people.”
Drug tests are also required for every new hire at Delhi and Meridian townships, the Ingham County Sheriff’s Office and within Lansing Public Schools. Dozens of other local employers — like General Motors, McLaren and Peckham — also told City Pulse about some form of ongoing drug testing, but many declined to elaborate.
A spokeswoman for Delta Dental, for example, declined to outline its specific testing procedures or the meaning of its “drug-free workplace.” She only noted the company prohibits staff from possessing or being under the influence of marijuana on the job; it’s unclear what effect a positive test could have on employment there.
Bruner said the findings of the state report gives employers one less leg to stand on for testing. The practice suggests those who smoke — regardless of whether they’re high — are somehow inferior to their non-smoking counterparts, she said.
“We live in a world where medical and recreational use is legal. People could be using marijuana to treat an ailment or for their own pleasure outside of work” Bruner added. “That level of THC found on these tests doesn’t necessarily equate to an impact on their work day. There’s a reason that we didn’t set a limit on this.”
Nicholas Fillinger, a member of the state commission and a forensic toxicologist for the Michigan State Police, said a correlation still exists between marijuana in the bloodstream and impairment. It just can’t be adequately measured with existing technology. As testing evolves, a limit might someday be further justified, he suggested.
“That just doesn’t exist,” Fillinger added. “What each individual employer does? That was really outside the scope of the commission, but I’d say employers need something more to determine whether they’re impaired.”
Not all employers maintain such a rigid stance on drug testing — particularly after the passage of Proposal 1.
A spokeswoman for the Douglas J. Aveda Institute noted that prospective employees undergo a background check but aren’t required to pass a drug screening before they’re hired. If there is reasonable suspicion that a stylist showed up under the influence, they might test them, but it won’t always lead to their termination.
“I can’t say we’d automatically fire them,” she added. “There are lots of things that show up in these drug tests and it’ll take some investigating into why something has shown up on that test. It’s definitely individualized.”
Deputy Superintendent Mark Coscarella said staff at Lansing Public Schools are screened for marijuana before they’re hired, but he also noted that a positive test for THC won’t necessarily preclude anyone from the job — including teachers and others staff that supervise and educate local children on a daily basis.
“Is it possible? Sure,” Coscarella added. “The hard part about this is that there’s no agreed-upon amount of THC in the bloodstream that could render someone under the influence or consider them to be impaired.”
Industry advocates suggested that workplace testing for marijuana use will only continue to be phased out as more employers come to terms with an increasing sense of social acceptance across the state. And if they don’t? Their applicant pools — and staff retention rates — will only suffer as recreational marijuana hits the market.
Pollicella said more employers need to stop stereotyping marijuana users and recognize that casual use has no bearing on workplace productivity. Particularly among card-carrying patients, the ability to manage their ailments with medical marijuana could actually enable them to be more efficient on the job, she suggested.
“Everyone seems to accept alcohol,” Pollicella added. “This is more of a societal and overall policy issue for these employers. They can keep being strict about this, but that would preclude about a quarter of the workforce. I just think marijuana users tend to be painted with a very broad brush, and it takes time for employers to adjust.”