According to the latest Gallup poll, 66% of Americans favor marijuana legalization. Marijuana use and possession continue to be illegal under federal law. Despite this, Ohio is one of 33 states that have legalized it for medical purposes, while 11 states have legalized adult use or recreational marijuana. Ohio’s marijuana dispensaries are now operational, and more than 40,000 registered patients have purchased medical marijuana. This means that Ohio employers will now encounter job applicants and employees who use medical marijuana.
Under Ohio law, employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana in or out of the workplace. Employers can refuse to hire, discharge, and discipline an individual because that individual uses medical marijuana. Further, employers can prohibit employees from being impaired by or under the influence of medical marijuana while at work.
Even so, employers should keep in mind the following principles in order to minimize workplace risks and potential litigation, whether from impaired employees, terminated medical marijuana users, or rejected applicants.
Remember that only “qualified” individuals can possess and use medical marijuana.
For medical marijuana use to be legal under Ohio law, the individual must be a qualified user. Essentially, this means that he or she has one or more statutorily qualifying conditions; is registered with the state; and had a treating physician “recommend” medical marijuana (federal law prohibits physicians from “prescribing” medical marijuana). Medical marijuana can be used in tinctures, oils, edibles, plant material, patches, and vaping; Ohio law prohibits smoking medical marijuana.
Determine how you want to treat applicants’ and employees’ medical marijuana use.
Ohio law permits employers to maintain a drug-free workplace and to test for drugs, including medical marijuana. At the same time, employers may choose to accommodate on- and/or off-duty medical marijuana use like they accommodate other medication use. Employers also may choose not to drug test applicants and/or employees or to test only those in safety-sensitive positions. Thus, employers should consider whether they can or should make exceptions to their substance abuse policies for medical marijuana users, and they should be clear about drug-testing requirements. Regardless of whether medical marijuana use is accommodated, employers can always prohibit employees from working when impaired or under the influence, regardless of a substance’s legal or quasi-legal status. Employers should remind employees that they cannot come to work impaired by any substance, even medical marijuana.
Update your employment policies, including job descriptions.
Employers should ensure that their substance abuse policy directly addresses how they intend to treat medical marijuana use both on- and off-duty. This is especially important if an employer intends to challenge an application for unemployment compensation benefits by an employee terminated for medical marijuana use. Employers also should update their job descriptions to ensure they accurately describe a job’s essential functions, which is important for determining whether a position is safety-sensitive and whether medical marijuana use could potentially be accommodated in the position.
Train your managers and supervisors to identify signs of impairment.
A positive drug test will not show whether a person was impaired by or under the influence of medical marijuana. Individuals can test positive for marijuana for as long as 30 days after use. Therefore, managers should be trained to identify signs of marijuana impairment, monitoring and documenting employee performance, being alert to performance issues, and enforcing the employer’s substance abuse policy. Evidence of workplace impairment may include involvement in a workplace incident that appears to reflect negligence or carelessness, poor decision-making, decreased coordination or dexterity, irrational or unusual behavior, slowed or slurred speech, glassy or blood shot eyes, and/or a detectable odor of marijuana.
Take note of emerging issues with CBD products.
CBD products containing less than 0.3% tetrahydrocannabinol (or THC, which is the psychoactive ingredient in marijuana) are legal under Ohio and federal law. However, it is possible for a high enough quantity of CBD to result in impairment and/or a positive drug test. Because of the limited regulation of CBD products, products that claim to be THC-free may have been misbranded while hemp-based CBD products can contain traces of THC. A drug test cannot determine whether the THC came from hemp or from marijuana.
Be aware of lurking disability and other employment issues.
Laws in several states, as well as court rulings, require that medical marijuana users be accommodated or that the employer at least engage in an interactive dialog to determine whether an accommodation is possible. While Ohio employers are not required to accommodate medical marijuana use, the individual may have an underlying disability that may need to be accommodated. At the very least, the employer should engage in an interactive process to determine whether an accommodation is possible. Like any other employment decision, it is important to treat similarly situated individuals the same. This means, for example, that an employer faces potential liability if it accommodates white medical marijuana users, but not minority users.
Keep abreast of this evolving area of the law.
Marijuana laws are complicated, sometimes contradictory, and changing all the time – and they affect everything from an employer’s drug testing policy to workplace conduct rules to disability accommodation. Unfortunately, there is no one-size-fits-all policy for multi-state employers. Therefore, employees need to stay informed of these changes in every state in which they operate. Oklahoma restricts drug testing for marijuana; 14 states expressly prohibit discrimination against medical marijuana users; Nevada requires that an employer make reasonable accommodations for a medical marijuana user; Connecticut and Minnesota prohibit terminating a medical marijuana user unless he or she used or was under the influence of marijuana at work; and Illinois protects both off-duty medical and recreational marijuana use. Even if your business is currently only employing people in one state, you still need to keep an eye on what’s happening in other states. The trend toward legalization is growing, and developments in one state have a way of inspiring similar legislation and court challenges in other states.
About the author: Michael Griffaton is of counsel in the Vorys Columbus office and a member of the laborand employment and government relations groups. He represents retailers in a broad range of employment matters. He can be reached at mcgriffaton@vorys.com.