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Are You Ready? Delay in Ohio’s Marijuana Law Gives Employers Time to Prepare

(Fall 2018) The intended date for Ohio’s new medical marijuana law to be fully operational has come and gone. While the delay is likely frustrating for patients waiting to purchase the drug legally with their doctor’s recommendation, it gives businesses the opportunity to “get their ducks in a row” prior to coming face-to-face with the issue at the workplace.

Putting it bluntly, as soon as the system is up and running, an employee could get a recommendation from their doctor to use marijuana, walk into a dispensary and purchase it, test positive on a workplace test and ask that the result is waived based on medical necessity. Does an employer have to say “okay” – even if they have concerns related to safety, productivity and public image?

Here’s the bottom line: Under the law (Ohio H.B. 523), employers are not required – but are not prohibited – from allowing the lawful use of marijuana as medicine, unless prohibited by an authority. So, every employer – even the small ones, those who don’t do much risky work, and even those who really know their employees – need to decide whether they will allow their employees to use marijuana as medicine. And ideally, that decision should be made before employees disclose they received a recommendation from their doctor or confess to using the drug as medicine as a defense to testing positive.

As Working Partners® has been traveling the state talking with employers about this issue, decision-makers seem to be falling into three camps:

  1. The first camp is composed of those businesses who say, “Without a doubt, I’m not going to accommodate. Absolutely not. I’m not changing my drug-free workplace policy. No is no.” While there is a lot of emotion attached to their decision, few have put much thought behind it – like the implications of having to tell a valued, long-time employee that he may not use the drug for symptoms related to his Crohn’s disease (one of the 21 qualifying medical conditions).
  2. And then there’s another camp that says, “Of course we’re going to accommodate. If someone’s doctor says they need it, who am I to say they don’t?” Again, lots of emotion, but little insight about the operational challenges associated with permitting use. For example, if the company had knowledge of the use, how would they respond if the employee caused a serious accident on the job and tested positive? And what if the company’s property/casualty insurance rates go up as a result of their decision to allow use?
  3. Those in the third camp say, “Actually, that new law doesn’t affect us. We’re too small … and we’re related to all our employees … and they’ve all been working here for ages.” Again, a strong rationalization but based on what? They may know their employees’ capabilities, personalities and behaviors without marijuana in their systems, but what about when they’re under the influence of the drug?

With each group of employers, their decisions about medical marijuana are likely based on personal opinion and instinct versus some key information about legalized marijuana as it relates to the workplace:

  1. Marijuana is still illegal at the federal level, which means that employers who are regulated by federal law may have no choice but to say “no.”
  2. The Food and Drug Administration (FDA) has not approved marijuana as a prescription, so we can’t treat it like one.
  3. There currently is no way for employers to know – objectively and scientifically – if an employee who tests positive for marijuana is impaired by the drug.

If any of these critical issues were to change (i.e., marijuana is re-classified at the federal level, the FDA approves marijuana as a prescription, or a test is developed to test for impairment), the conversation for employers would change.

But for now, while we’re waiting for the law to be fully operational, it’s important for ALL employers to recognize they need to make a decision about their rules around the drug. And to make that decision, they should do it with complete and accurate information about the full implications of saying “yes” or “no,” and with the right players at the table (e.g., company owner, legal counsel, HR and safety staff, drug-free workplace consultant) who are vulnerable enough to be able to look at all sides of the issue and challenge personal beliefs and opinions.

To assist employers in lining-up their ducks around Ohio HB 523, Working Partners® has developed a variety of educational and policy-related services to help employers make, then act on, a decision that is grounded and right for their unique workplace and workforce. Visit our website or call (614.337.8200) to learn more.

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DISCLAIMER: This publication is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the publication are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.