Important Employment Law Updates from Welch Law, PLC

Legal Updates

Legalized Recreational Marijuana

Despite the passage of legalized recreational marijuana use in Michigan (set to go into effect in early December---10 days after the certification of election results), employers can still decide that they want to be “drug free.” The challenge employers now have is deciding what does this mean? Of course a worker cannot show up for work under the influence of any drug (or alcohol). Anyone can be fired for that. The problem is that, unlike alcohol, there is not yet a test to determine when a worker is “under the influence” of marijuana. If an employee is drug tested, either before employment or during (whether randomly, due to an injury, or suspected drug use), a positive drug test for marijuana just indicates use in the last few weeks---not necessarily that day.

Employers have a decision to make: Are you completely drug-free (no positive tests allowed for marijuana) or are you okay with off-hours use that does not impact the work place? You as the employer will have to decide: (1) Does off-duty drug use impact an employee’s job? (2) Do you morally have an objection to the use of marijuana and therefore want it completely prohibited? (3) Can you find enough workers for your work force if completely banned? (4) Do you have safety-sensitive jobs requiring more stringent rules?

Most of my clients are allowing off-work use, but clearly will discipline or terminate an employee if he/she is under the influence at work or not attuned to work duties. Most employers are also mandating that anyone in safety-sensitive positions also be prohibited from marijuana use (again, since there is no test to determine if a worker is under the influence, the employer is left with little choice but to have this black-white rule). If an employee is an accident (for example, driving or using machinery) with marijuana in his/her system, the employer could be liable. This leaves employers little option but to require employees with such positions to refrain from recreational marijuana usage (and to have policies that require discipline or termination if the employee has a positive drug test). Federal contractors are still subject to federal drug-free workplace laws (which prohibit marijuana usage).

Employers will need clear policies with their employees as to what they expect. As always, Welch Law can assist you with this process if needed.

Paid Sick Time

A proposal to provide paid sick leave to all Michigan employees received enough signatures to be on the November 2018 ballot but was stymied by the legislature passing the law first---with the plan to scale it back during lame-duck session. Lawmakers are on their hunting/Thanksgiving break right now but return on November 27, 2018 to a busy agenda prior to many lawmakers being term-limited out.

The law, as passed, allows for employees to take paid time-off to care for themselves or family members due to illness. Employers with 10 or more employees (part-time, full-time and temporary) would have to provide one hour of paid sick leave for every 30 hours worked (up to 72 hours per year). Employers with less than 10 employees would have to provide up to 40 hours of paid sick leave each year (plus 32 hours of unpaid sick time). The legislature is expected to scale this back, but the specifics are unknown. This is why you haven’t heard much about this since it is unclear where this law will land. Stay tuned for more information.

Minimum Wage Increase

One Fair Wage lead a campaign in Michigan to increase the minimum wage to $10/hour (starting January 2019) and then $12/hour by January 2022. The proposal also provided yearly cost-of-living adjustments. The law also would have impacted the restaurant industry by raising the minimum wage for tipped employees so that it eventually equaled minimum wage by 2024 (thus eliminating “tip credits” to reach full minimum wage). The proposal received enough signatures to make the November 2018 ballot but the legislature, as with paid sick time, passed the law. Again it is anticipated that Lansing lawmakers will roll back the law significantly in lame-duck session.

I will send an alert out on any changes to the Minimum Wage and Paid Sick Time laws as that information becomes available. As always, I’m here to answer any questions you have or to assist you with any policy updates. I hope you have an enjoyable Thanksgiving.