GRAND RAPIDS — When it comes to attracting and retaining the most qualified talent at his Grand Rapids-based tech firm, Atomic Object LLC CEO Carl Erickson wants to keep the company’s options as open as possible.
With the software industry already plagued by a shortage of skilled workers, especially female programmers, Erickson thinks now would be the wrong time to institute drug testing for new employees, a move that would further limit the available talent pool.
“The acceptability of at least marijuana has shifted dramatically over the last 20 years,” Erickson said. “If the standard limits those that have used marijuana in the last week, you’re surely going to be limiting your pool of applicants.”
Erickson’s decision not to drug test stems from a low risk of workplace injury for his workers combined with an unwillingness to pry into the personal lives of his employees.
“My perspective on this is if they want to share their recreational habits with me, that’s their prerogative, but I’m sure as hell not going to put them in a position to have to do it,” Erickson said.
Atomic Object’s lenient approach to drug testing its workers may become more commonplace among employers in West Michigan and beyond as companies adapt to the shifting landscape of acceptance regarding marijuana use for both recreational and medical purposes.
The current patchwork of state laws governing marijuana coupled with the drug’s illegal status on a federal level have created a grey area for employers. However, the courts have mostly ruled in favor of those companies that enforce a no-tolerance policy for marijuana — even if it’s been consumed legally outside of the workplace.
The Colorado Supreme Court ruled in June that employers had the right to dismiss workers for failing a drug test even if they legally used medical marijuana on their own time. That controversial ruling came at the same time marijuana legalization spread to new states.
On July 1, Oregon joined Colorado, Washington, Alaska and the District of Columbia as states allowing recreational marijuana use, and the list has the potential to grow in the coming years. Groups in several states including Michigan, Ohio, Massachusetts and Nevada are lobbying to get legalization initiatives included on November 2016 ballots.
A MATTER OF SAFETY
In the Grand Rapids area, Atomic Object’s lenient drug policy seems to be at odds with the majority of employers who responded to a survey from The Employers’ Association.
This year, 76 percent of the 135 respondents stated they used drug and alcohol tests as part of their pre-employment screening process, an increase of 11 percent compared to a similar study conducted in 2014. More than half of the companies who participated in the survey operated in the manufacturing industry.
“Everyone I’ve talked to here says the reason for the increase in testing is because companies are busier than ever and need the people,” said Maggie McPhee, director of information services at The Employers’ Association. “They can’t afford the liability or the mistakes.”
Asked when a company would refuse to hire an applicant because of positive testing results, 73 percent of respondents stated they would do so immediately after receiving confirmation of the results, according to the survey.
For a short period in the early 2000s, a handful of companies stopped mandating pre-employment screenings because they couldn’t find enough people who could pass drug tests to satisfy their demand, said Kevin McCarthy, a partner at Warner, Norcross & Judd LLP who specializes in labor and employment law in the firm’s Kalamazoo office. But while those companies found more applicants, their product quality declined and their workers’ compensation claims increased as a result of the relaxed policies, he said.
“I’ve always been a strong proponent of pre-employment drug testing and the testing of current employees as well,” McCarthy said. “For the vast majority of my clients, my counsel is that you’ll get a better, safer and more productive workforce if you have a drug-testing program in place.”
For Byron Center-based Plasma-Tec Inc., the use of any sort of illegal drug constitutes a safety issue, said General Manager Bryan DeGroot, who added that the manufacturer’s screening process hasn’t limited the company’s ability to find talent. The producer of internal components for pumping equipment maintains a strict no-drug policy that includes a pre-employment test coupled with randomized quarterly testing.
While the company’s policy is strict, it offers potential employees the opportunity to become drug-free before agreeing to take a pre-employment drug test, DeGroot said.
“It’s one of the things that fall in line with our philosophy of second chances,” he said. “If they can’t pass the test that day, instead of wasting my money and time, we tell them to get cleaned up and when they are, come back and we’ll send them.”
The company will also assist employees with rehabilitation and then a reevaluation of their position if they test positive on a drug test, DeGroot said.
A recent Monitoring the Future study conducted by researchers at the University of Michigan shows that college students are using marijuana more than they have in the past. That shift could affect employers in the coming years as the students graduate and enter the workforce.
Recreational drug use among college students in two- and four-year programs grew from 34 percent in 2006 to 39 percent in 2013, bolstered largely by the increased use of marijuana, according to the study. Thirty-six percent of the 1,000 students surveyed nationwide indicated they had tried marijuana over the last 12 months, the highest use recorded over the survey’s 34-year history.
Daily or near-daily use of marijuana has risen to 1 in 20 students surveyed in 2013, up from the 1 in 50 surveyed in 1990. Meanwhile, the use of other illegal drugs has declined, according to the study.
While recreational use of marijuana is still illegal in Michigan, use of the drug for medicinal purposes has been legal since 2008. However, medical marijuana use in Michigan seems to have stabilized.
During Michigan’s 2014 fiscal year that ended Sept. 30, 2014, 116,981 patients applied for medical marijuana cards in Michigan, according to data from the Michigan Department of Licensing and Regulatory Affairs. That’s down 14 percent from the 133,890 patients who applied for medical marijuana licenses the year before.
Despite some companies’ strict no-tolerance drug policies, local employers may rethink their restrictions on marijuana if proposed legalization measures make it on to the November 2016 ballot.
Three groups — MI Legalize, The Michigan Cannabis Coalition and the Michigan Responsibility Council — are vying to get their versions of recreational marijuana legalization before voters. While the groups differ on their approach to legalization, voters should fully expect to weigh in on at least one of the measures, according to reports.
“I think companies are not going to have a choice but to adapt,” said Erickson of Atomic Object.
The number of people supporting marijuana legalization in the U.S. has risen significantly over the last decade, according to a Pew Research Center report. Currently, 52 percent of people favor legalization, compared to the 45 percent who oppose it. The portion of legalization supporters rose 11 percent from 2010 to 2013, outnumbering those opposed for the first time.
As legalization becomes at least a possibility in Michigan, both lawmakers and employers will face significant challenges, particularly when it comes to establishing the definition for inebriation as a result of marijuana use, according to legal experts.
However, even if the drug becomes legal in Michigan for recreational use, it’s likely that some companies will maintain their stance on the drug. For example, Plasma-Tec plans to enforce its no-tolerance policy toward marijuana regardless of whether it’s legalized by voters, DeGroot said.
A LEGAL PRECEDENT
Beyond establishing inebriation standards, the June 2015 decision by the Colorado Supreme Court could give employers cause to terminate workers for recreational marijuana use, said Bill Bereza, principal at Grand Rapids-based William I. Bereza PLLC.
The court upheld a 2010 ruling in which a quadriplegic employee of Comcast was fired for failing a drug test when he used medical marijuana after hours to treat his condition.
“In Michigan, there’s nothing employees can do about it,” said Bereza, who co-founded Atomic Object with Erickson and since moved on to establish his own law practice. “I think it’s going to happen more often now. Companies don’t have to worry about employees suing them. … I think companies are going to be more comfortable firing people for medical marijuana use.”
In 2009, the Michigan Supreme Court upheld the firing of a Michigan Wal-Mart employee who used medical marijuana to treat sinus and brain cancer after he failed a drug test following an accident at work.
Despite work on the part of advocacy groups and legislators, recreational use of marijuana will remain contentious among employers and employees since the federal government still deems the drug illegal, Bereza said.
“If you expect someone to get injured on the job, then you probably do have to test,” he said. “If you have a medical card, you should expect to lose your job if you’re getting tested. … (And) if you’re going to test, you’re probably going to have to fire people