Ohio Businesses’ Medical Marijuana Decision Impacted by Outside Forces

(Spring 2018) Ohio’s deadline for having its medical marijuana system up and running is September 8, 2018.  Before this date, employers need to determine and declare where their company stands in relation to allowing employees to use marijuana as medicine.*  Ohio employers may choose to prohibit or accommodate employee use.  And though challenging, there will be some workplaces that will blend their approach by need (e.g., Department of Transportation requirements [DOT]) or choice.

Some states are silent about employment practices as they relate to medical marijuana.  Other states have definite employment restrictions severely limiting employers.  Ohio has addressed the employment issue in their bill and the good news is that Ohio House Bill 523 – legalizing the use of marijuana as medicine – provides Ohio employers with flexibility.

Among the details, HB 523 states

• Employers are NOT required to accommodate use, possession or distribution.
• Employers CAN refuse to hire, discharge, discipline and take adverse employment action.
• Employers CAN establish a drug-free workplace program (including zero tolerance).
• Employers CANNOT be sued for adverse action taken based on medical marijuana use.
• This law does not interfere with federal restrictions on employment (e.g., DOT).
• NO unemployment will be paid for an employee violating an employer’s drug-free workplace or zero-tolerance policy.
• This law will not interfere with Workers’ Compensation:
  • The Drug-Free Safety Program (DFSP) requirements remain valid.
  • Rebuttable presumption is still in place.
• Medical marijuana will not be covered by health insurance.

Ohio employers still have a decision to make.  For the employer that does not want to accommodate use, the available workforce pool may become more limited.  For the employer who does want to accommodate use, there will be many drug-free workplace program operational details that have to be determined and articulated in company policy and practice.  However, an important note:  No matter which way they are leaning, an Ohio employer may want to consider issues beyond the state’s borders as they finalize their corporate position.  It will be vital that they depend upon their legal counsels and drug-free workplace consultants in making these decisions.

The truth is, for some Ohio employers, the decisions they face may not be as simple as determining what they want for employees who come to work every day in their sole, Ohio facility.

Every week there are significant developments around the country regarding state legalization of both medical marijuana and recreational marijuana. Some of them could directly affect how Ohio employers ultimately deal with this issue for their employees and in their workplaces.

Just a few years ago, the mantra in the drug-free workplace industry was, “although there have been challenges, employers have consistently prevailed in prohibiting employee use of marijuana.”  Back then, there were only a few states that included employee protections in their legalization of medical marijuana.

However, things are changing.  Currently, there are 12 states – Ohio is not one – with specific protections for employees. There have been court decisions in Rhode Island, Connecticut and Massachusetts that have thus far (some are being pursued in higher courts) ruled in favor of the employee and may have a much broader impact.

Despite all this activity, there remain three factors that stand relatively consistent so far:

1. If the employees are regulated under federal law, marijuana use is prohibited.
2. Private industry employers can prohibit use on premises.
3. Private employers can prohibit an employee from being impaired on the job.

The world is getting smaller and even if an Ohio-based company and its employees do not work outside of Ohio, the directives being forged by other states can still impact your Ohio business.  No matter where an Ohio employer stands on accommodating employees’ use of medical marijuana, another state’s law can complicate corporate operations.  Employers will want to think through these nuances and get feedback from their legal counsel and program consultants before they are addressed.

For example, under California House Bill 64, recreational marijuana use is legal.  Consider, an Ohio-based employee travels for work or vacations in California and per California’s legalization, they use in that state.  Then upon returning to Ohio, the employee tests positive in a routine test.  Or, while in California, what if the employee posts a picture of him or herself imbibing in marijuana use?  An Ohio employer may want to be concerned about such possibilities and address them in policy if such activities could negatively impact his or her company’s public image and business opportunity.

In years past we encouraged that the most important concerns to consider and abide by were those in the state-location where the employee would be tested.  Although this, for the most part, is still a working premise, a recent case in Minnesota (Olson v. Push, Inc., No. 14-3160 (8th Cir. Feb. 22, 2016)) complicated that bedrock.  A court found Minnesota’s workplace drug test law can apply to employees in other states when the employee or the employer has some contact with Minnesota.

Lesson to be learned – we need to be cautious about assuming that we understand the impact of the laws of any involved state when it comes to drug-free workplace issues.  What can appear to be a simple matter of an employee violating a drug-free workplace policy may end up being evaluated under a different employee protection issue because of such things like the employee’s working relationship to another state.

The decisions facing Ohio employers are not as easy as they appear.  Employers need to consider several factors as they determine their stance.  They need to consider what states they work in, what type of work they do, where testing takes place, their tolerance for risk and much more — that may only be understood by their counsel or consultants.

Employers will, however, benefit from staying apprised of the developments at the local level as well as nationally.  Suffice it to say, with all the activity there are potentially many more twists and turns before Ohio’s September deadline.

Be advised that Working Partners® will be offering medical marijuana technical assistance to help employers uncover and explore all their options to arrive at a stance that is best for their company’s drug-free workplace operations.  Stay tuned.

* NOTE: The content of this article is meant for informational purposes only and not for the purpose of providing legal advice. As such, it should not be used as a substitute for consultation with a legal professional or other competent advisor. Please contact a licensed attorney to obtain advice with respect to any legal issue discussed in this article or regarding a situation specific to your business.

Return to Home Page

(DON’T FORGET: Click on the boxes to the right for our columns)