Michigan ends marijuana testing for some government jobs

KLAW Blog · July 17, 2023

Updated: Jul. 13, 2023, 4:35 p.m.

Some Michigan government job applicants will no longer be overlooked because of their marijuana use.

The Michigan Civil Service Commission voted unanimously Wednesday, July 12, to partially lift a longstanding ban on hiring state employees who fail pre-employment drug screens for marijuana.

A five-year high of 151 applicants who applied for state jobs failed for the presence of marijuana in 2022, according to data provided by the Office of the State Employer (OSE).

The number more than doubled from 2021 and the state recorded 351 pre-employment failures for marijuana since it was legalized for recreational use in 2018. Of 83 failed pre-employment drug tests this year, 81 were for marijuana.

Marijuana testing will remain in place for a large swath of government employees, including health workers, state police and Michigan Department of Corrections officers. But effective Oct. 1 eliminates the requirement for office staff and those applying for positions that don’t require driving, operation of heavy machinery or handling of hazardous materials.

The change also eliminates current rules that ban applicants who previously failed a drug test for marijuana from applying for another state job for three years.

Read the rest of the story here at MLIVE

Here is the Communications Document Info below

STATE PERSONNEL DIRECTOR OFFICIAL COMMUNICATION
SPDOC No. 23-06

TO: ALL APPOINTING AUTHORITIES, HUMAN RESOURCES OFFICERS,
AND RECOGNIZED EMPLOYEE ORGANIZATIONS
FROM: JOHN GNODTKE, STATE PERSONNEL DIRECTOR

DATE: MAY 12, 2023
SUBJECT: PROPOSED AMENDMENTS TO RULE 2-7, DRUG AND ALCOHOL
TESTING, AND REGULATIONS 2.07, DRUG AND ALCOHOL TESTING,
AND 2.10, DRUG TESTING COMPLAINTS BY NON-EMPLOYEES

In the 1980s, the commission adopted a testing policy outside its rules to provide
guidelines on drug and alcohol testing of classified employees. In 1998, the commission
amended its rules to specifically (1) require preemployment drug-testing of newly hired
classified employees, (2) allow reasonable-suspicion and follow-up testing of classified
employees, and (3) allow random-selection and post-accident testing of classified
employees in test-designated positions. The rules define these test-designated positions
as those (1) requiring a commercial driver’s license or operating certain vehicles,
equipment, and machinery, (2) with law enforcement powers or allowed to carry a firearm
on duty, (3) providing healthcare services, (4) working with prisoners, probationers, or
parolees, (5) with unsupervised access to controlled substances, or (6) handling
hazardous or explosive materials. Also in the late 1990s, collective bargaining
agreements added provisions allowing similar reasonable-suspicion, follow-up, randomselection, and post-accident drug-testing of exclusively represented employees. Federal
law also requires preemployment and employee testing of some test-designated positions
operating certain vehicles.

The 1998 rules directed the state personnel director to establish prohibited levels of drugs
in regulations. Those regulations—and collective bargaining agreements—called for
testing under procedures established under federal law. While the regulations technically
allow agencies to request approval to test for any drug in schedule 1 or 2 of the state’s
public health code, the default testing protocol used by the state since 1998 has tested
for five classes of drugs: marijuana, cocaine, opiates, amphetamines, and phencyclidine.
Recent years have seen changes across the country in state laws regulating controlled
substances. Michigan voters legalized marijuana’s medicinal use in 2008 and recreational

SPDOC No. 23-06
Page 2

use by adults in 2018. In light of these changes, commissioners have requested
circulation for public comment of potential regulation amendments to end the preemployment-testing requirement for marijuana for classified employees hired into nontest-designated positions. Ending this pre-employment testing for marijuana would not
affect the availability of reasonable-suspicion or follow-up testing for marijuana of
classified employees, including candidates who become employees.
Because of ongoing testing requirements under federal law and safety considerations
related to test-designated positions, the proposed amendments would preserve the status
quo for pre-employment, random-selection, post-accident, follow-up, and reasonablesuspicion testing for those positions.

The potential change to regulation 2.07, § 4.B.1.b for which public comment is sought is:
b. Drugs included. Rule 9‐1 defines drugs as those included in schedule 1 or 2 of
controlled substances at MCL 333.7201, et seq. Hundreds of drugs are covered
under schedules 1 and 2, but it is not feasible to test routinely for all of them.
When a drug test is required, an appointing authority shall require testing for
marijuana, cocaine, opiates, amphetamines, and phencyclidine, except that an
appointing authority shall not require testing for marijuana for a pre‐
employment drug test of a new hire to a position that is not test‐designated.
Before If an agency requires testing for other drugs, it must first obtain written
approval from the director. A request must include the agency’s proposed
initial test methods, testing levels, and performance test program. When
conducting reasonable‐suspicion or post‐accident testing, an agency may
require testing for any drug listed in schedule 1 or 2.

Staff has identified a related issue determined by rule that would require commission
action to modify. Since Proposal 1 took effect in December 2018, approximately 350
applicants for classified positions have tested positive for marijuana in preemployment
testing. Rule 2-7.4(b)(1) requires rescission of the conditional employment offer and a
three-year sanction from appointment to other state positions in such a situation. While
many of these sanctions have since lapsed, a few hundred remain in effect. The
commission could adopt rule language allowing amnesty through rescission of continuing
sanctions based on a preemployment drug test for a non-test designated position with a
positive result for marijuana. Such action would not result in employment for these
candidates but would allow them to apply for classified positions rather than waiting three
years after being sanctioned.

The potential new rule 2-7.4(c) for which public comment is requested is:
(c) Rescission of marijuana sanctions. A person with an active three‐year
sanction based on a positive result for marijuana from a pre‐employment drug
test for a non‐test‐designated position may request the sanction’s prospective
rescission as provided in the regulations.

SPDOC No. 23-06
Page 3

If such an amendment were adopted, updates could be made to rule references in
regulations 2.07 and 2.10 and the following new § 3.E could be added to regulation 2.10:
E. Marijuana sanctions. A person with an active three‐year sanction based on a
positive result for marijuana from a pre‐employment drug test for a non‐test‐
designated position under rule 2‐7.4(b)(1) can have the sanction prospectively
rescinded by email request to MCSC‐OCSC@mi.gov. The request should
identify the person’s full name and, if available, the date that the sanction was
imposed. Civil service staff shall provide written confirmation of the sanction’s
rescission.

Comments on the proposed amendments may be emailed to MCSC-OGC@mi.gov or
sent to Office of the General Counsel, Michigan Civil Service Commission, P.O. Box
30002, Lansing, Michigan, 48909. Comments must be received by June 23, 2023.
Attachments