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Taking Action on Your Company’s Stance on Medical Marijuana

(Winter 2018) Ohio’s law legalizing marijuana as medicine (Ohio HB 523) passed over two years ago. Grow sites were approved, production and product testing facilities were selected, doctors were certified to recommend marijuana, and 57 locations across the state were given licenses to dispense the drug. But the original deadline for everything to be up and running came and went. And with that delay, many employers delayed taking action on this new law that will likely impact business operations.

But the time has come. The patient registry was activated on December 3rd, meaning patients (many of whom are employed) will be able to legally purchase and use marijuana within 60 days. Hopefully, by the time the dispensary doors open, all employers across the state will have made a proactive, purposeful and rational “yes, no, or maybe” decision about their stance on medical marijuana – that is, how they’ll respond if they become aware that an employee has received a recommendation and is using marijuana, including if the employee self-discloses they have or are planning to get a recommendation. (Remember, Ohio HB 523 says businesses are not required, but are not prohibited, from allowing the lawful use of marijuana as medicine — unless prohibited by an authority, like the Department of Transportation.)

Employers who say NO have determined the law does not change their stance on marijuana — meaning employees are prohibited from possessing, using, being under the influence or testing positive, on the job, for marijuana. Additionally, the use of marijuana for medical purposes will not be considered an acceptable explanation for a confirmed positive drug test. Positive is positive. Those who say YES have decided they will make exceptions for medical marijuana in their drug-free workplace (DFWP) policies/programs. And employers choosing MAYBE will either handle situations on a case-by-case basis (which can be risky) and/or postpone their final decision until the state has more experience implementing the law.

While making this “yes, no or maybe” decision is a critical step, it’s certainly not the last step Ohio employers need to take in response to Ohio HB 523. Here are five action steps for consideration:

ONE: Prepare to explain your decision. Ideally, employer decisions about medical marijuana are rational decisions – grounded in issues like safety and liability. But there is no doubt the issue can evoke lots of emotion. With that, it’s important that employers carefully identify the business rationale behind their decision and be ready to articulate that information – particularly to those who might have strong emotional reactions to the decision (e.g., hiring managers, employees suffering from one of the qualifying conditions for which marijuana can be recommended, union members, customers/job owners).

TWO: Research and refine your operations, particularly if you ARE going to make exceptions in your DFWP program for medical marijuana. The devil truly is in the details with this HR issue. Deciding to say “yes” to an employee’s use of marijuana involves locking down related procedural issues such as:

  • How a supervisor should respond if an employee discloses he or she has a medical marijuana card
  • What information the Medical Review Officer (MRO) will give to the employee — and the company — when a card is presented as a defense to a positive drug test
  • How the company will verify the validly of a card
  • How job descriptions will be adjusted to direct decisions about when and by whom medical marijuana can be used
  • What will be mentioned about the company’s stance in job postings
  • What will be communicated to new hires in the orientation/on-boarding process

THREE: Declare (policy docs) – Even if an employer is not going to make any exceptions to their “no marijuana” rule, it is important they adjust their policy documents and/or signature forms to clearly communicate that “no use” rule. It’s highly probable that employees will assume, because the law says marijuana can be used as medicine, that employers are required to say it’s OK to allow it at work.

Conversely, for employers who are going to say “yes” and make exceptions for an employee’s use of medical marijuana, there are more significant policy adjustments that need to be made. Changes to such areas as

  • Definitions – e.g., illicit drug, under the influence, safety sensitivity
  • Rules – involving use, possession, distribution and off-the-job use
  • Corrective Action – especially following a positive test for marijuana in those situations where the employee has a medical marijuana card

FOUR: Educate your employees. No matter what decision an employer makes regarding medical marijuana, it is imperative that employees know and understand the organization’s stance, the rationale behind taking that stance and how that stance will impact them. This can include information along the lines of the following:

  • Rules and expectations – as they relate to an employee’s use of medicine
  • Whether testing is being adjusted in reaction to this law
  • Corrective action taken if someone used medical marijuana and tests positive
  • Assistance options

FIVE: Train your supervisors. Supervisors are the “eyes and ears” a company’s drug-free workplace program. They need to understand the organization’s decision, so they know how to respond if they encounter an employee’s use of marijuana as medicine. Providing them with the tools to be able to respond and carry out their responsibilities to the program will help ensure a company’s stance toward marijuana as medicine will be enforced consistently. They need to be trained on such things as

  • The rationale behind your decision
  • Their role in operationalizing your decision
  • What to do if an employee self-reports they have been given a recommendation from their doctor to use medical marijuana
  • How to refer an employee for assistance

Ohio employers need to decide and then ACT on Ohio HB 523. To assist you in finalizing your decision and then taking action on your stance, Working Partners® has launched three new offerings:

  1. Medical Marijuana Operational Considerations Toolkit – Designed for those who have not made their decision.
  2. Medical Marijuana Employer Toolkit – For those who will NOT make exceptions in their DFWP policy/program for an employee’s use of marijuana.
  3. One-on-One Consultation – For those who WILL make exceptions for medical marijuana.

To learn more, check out the marijuana specific products on our website or just call us. Employers, our state is in the midst of trying to change our relationship with our culture’s most widely used illicit drug. And it can be complex. But it doesn’t have to be difficult. Let us know how we can help.

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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.