Can Highway Laws Help Ohio Employers Decide About Medical Marijuana?

(Fall 2018) With Ohio employers needing to determine whether they are going to permit/accommodate employee use of medical marijuana or not, it might be helpful to evaluate any existing guidance or laws already established in the state on the subject, e.g., laws around OVI (operating a vehicle while impaired).

Let’s back up just a moment and get acquainted with some basics for this discussion.

• First, under Ohio’s House Bill (HB) 523, Ohio employers have a choice in whether they want to permit or accommodate employees who qualify under the law and use medical marijuana unless the employer is directed otherwise by another authority such as the US Department of Transportation (DOT).
• Second, under Ohio’s HB 523, ingestion by smoking marijuana is still prohibited.
• Third, driving a vehicle while impaired is prohibited in Ohio.
• Fourth, under the Occupational Health and Safety Act (OSHA), employers have a general duty to maintain conditions or adopt practices reasonably necessary and appropriate to protect workers on the job.
• Fifth, also under OSHA, employers have a federal mandate to address impaired workers who contribute to unsafe work environments.

Some employers are taking the position that they don’t care whether employees use medical marijuana as long as they don’t do it at work AND are not impaired or under the influence at work. Unfortunately, the decision is not that easy. While research is limited, we do know some information about marijuana. For example, because of how the substance metabolizes in the body, many of marijuana’s impairing effects can linger beyond the length of time the employee feels its effects – meaning they could still be affected on the job from use that occurred off the job, i.e., the night before. We also know that the compromising effects of marijuana are more cognitive (mental) than physical.

To date, much of the knowledge we have about behavioral and cognitive skills impairment and accident risk caused by marijuana use comes from studies involving the operation of motor vehicles or simulators. Therefore, relevant to workplace safety. In driving studies, marijuana significantly affects drivers’ abilities to concentrate and maintain attention, estimate time and distance, and demonstrate coordination on divided attention tasks – all important requirements for operating a motor vehicle. AND, all relevant to most safety- and security-sensitive workplace activities.

So, a logical place to refer for guidance about permitting marijuana use might be the established Ohio laws on driving, specifically, Ohio’s OVI laws.

According to Shawn Dominy, Esq., in an article written for the Ohio Bar Association column, “Law You Can Use”, there are four prohibitions related to consuming marijuana and driving a vehicle. The law prohibits

• driving under the influence of marijuana
• driving with a concentration of marijuana in your blood (2 nanograms or more per milliliter) or urine (10 nanograms or more per milliliter)
• driving with a concentration of marijuana metabolite in your blood (50 nanograms or more per milliliter) or urine (35 nanograms or more per milliliter)
• operating a motor vehicle while both under the influence AND having a concentration of marijuana metabolite in your system (blood- 5 nanograms or more per milliliter and urine- 15 nanograms or more per milliliter)

So what does the Ohio law mean by “under the influence?” According to Dominy, under the influence indicates that marijuana has impaired the driver’s nervous system, brain or muscles to a noticeable degree, thus affecting the driver’s ability to operate a vehicle. (In drug-free workplace terms this would be considered acute reasonable suspicion.) But under the law, if the impairment is not behaviorally recognizable, drug testing becomes the assessment or measurement tool.

To better understand the OVI criteria around the measurements that come from a drug test, it’s helpful to know that marijuana metabolite is the substance produced when marijuana is broken down by the body. However, when considering this definition, it is unclear why Ohio decided to provide guidelines around the “concentration of marijuana” (item 2) vs. “marijuana metabolites” (item 3). This may be the result of laws being written before there was better scientific understanding about the chemical composition of marijuana.

A couple more pieces of technical information may be helpful for the employer unraveling all this. As there is with alcohol, we have no chart that correlates a measurement of the psychoactive metabolites in marijuana to impairment. And to further complicate the issue, urine testing (long established as the best practice for drug-free workplace programs) only reports the measurement of the inactive, non-psychoactive metabolites of marijuana (THC-COOH). Therefore, urine testing is not an indicator of impairment.

So you might be asking, “How is looking at OVI laws helpful?” To date, these laws are the closest, Ohio-specific guidance an employer can turn to for specifics in helping to decide whether or not to permit the use of medical marijuana by employees. Unfortunately, it doesn’t really provide enough transferrable application – especially in identifying someone who could be cognitively impaired due to use.

Bottom line, whether or not to accommodate an employee’s use of medical marijuana is not an easy decision for employers. There are many factors to be considered. We hope this article has at least given you additional fodder for your deliberations. It is critical that each employer becomes as informed as possible about all the related issues and takes a stand on this subject with eyes wide open. The well-being and safety of other employees and the public, not to mention employer exposure, will depend upon it.

Be sure to turn to our Marijuana Resource Center and register to attend one of our webinars titled “Yes…No…Maybe” to further explore necessary considerations.

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