Sheakley Updates

Marijuana Legalization 

Ella Baker
Marijuana Legalization 
Reading time 5 Mins
Published on Jul 27
Share

Effects on the Workplace

Effective September 8, 2018, state-licensed medical marijuana dispensaries will begin providing the drug to registered medical marijuana patients who have obtained a physician’s recommendation. Since many obtaining medical marijuana may be outside the workforce already due to chronic injury or illness, exactly how the law will affect hiring or companies and industries with zero-tolerance policies remains unclear. As an employer, you will need to decide how your company will handle applicants and employees who use medical marijuana and develop policies that specifically address this to ensure fair treatment of all employees.

Medical marijuana law

The medical marijuana law will allow patients with any of 21 specified diseases or conditions to obtain a recommendation from a doctor to obtain the drug. Medical marijuana will only be dispensed in the form of plant material, oil, a tincture, an edible or a patch. The law dictates that it can be vaped but not smoked.

The law also created the Ohio Medical Marijuana Control Program within the Department of Commerce and the State of Ohio Board of Pharmacy, through which medical marijuana cultivators, processors, and laboratories for testing the drug will be licensed. Meanwhile, the Pharmacy Board will oversee the licensure of retail dispensaries and the registration of patients and their caregivers.

The law and zero-tolerance policies

Under Ohio’s medical marijuana law, employers can still maintain or implement zero-tolerance policies in the workplace. While there may be challenges to these policies, in states with similar programs, court decisions have favored employers on issues involving hiring and dismal practices related to state marijuana laws. These rulings tend to emphasize the continued of illegality on the federal level, regardless of individual state laws.

The state of Ohio law does not require employers to permit or accommodate applicant’s or current employee’s use or possession of medical marijuana. Individual employers may opt to accommodate on- or off-duty use, similar to other accommodations as long as these accommodations are applied fairly. Employers with federal contracts or who act as federal contractors must maintain their drug-free workplace policies. Additionally, no accommodations are permitted for employees in specified safety-sensitive positions, like DOT-regulated drivers.

In Ohio, the law allows employers to prohibit the use of marijuana by workers, discipline workers for use of the drug, and refuse to hire applicants who test positive for use, regardless of whether they have a physician’s recommendation. Employees hurt on the job while under the influence, probably would not be eligible to receive workers’ compensation benefits and if dismissed for marijuana use will most likely be ineligible to receive unemployment benefits, since the state determines drug use to be a “with cause” eligible dismal.

The law and hiring practices

Ohio’s medical marijuana laws do not prohibit employers from dismissing, disciplining or refusing to hire individuals based on their medical marijuana use. Additionally, employers are able to prohibit any employee from working while impaired due to medical marijuana use, regardless of its legal status. Employers without drug policies are strongly encouraged to develop firm policies prior to the September 8 implementation date. Your policy, when included in your employee handbook with acknowledgement of receipt, will provide the framework for employees’ understanding of their rights and responsibilities.

Employers are still authorized to implement and enforce drug testing, drug-free workplace, and zero-tolerance policies. Employers should be upfront and clear about their drug-testing requirements with applicants and current employees. Managers should also receive training to help them identify signs of impairment, especially if regular drug-testing is not part of your policy.

Medical marijuana and the Ohio BWC

The Ohio Bureau of Workers’ Compensation has a straight-forward recommendation for employers:

“The best way employers can protect their workers and themselves is to establish a drug-free workplace, or, if they already have one, to review and update it if necessary. This is important because certain sections of the new law reference the use of medical marijuana in violation of an employer’s drug-free workplace policy, zero-tolerance policy or other formal program or policy regulating the use of medical marijuana. For what this means to your specific workplace, consult your human resources or legal department.”

Murky waters

Under Ohio law and the federal Americans with Disabilities Act, employers do not have to accommodate medical marijuana users who fail drug tests or who are impaired at work, although the underlying medical condition would have to be accommodated if it rose to the level of a disability. Due to the complicated relationship between the enforcement position of the federal government, an individual state’s statute, and court interpretations, employers can often be left feeling confused and unsure about how to proceed. Until Ohio’s medical marijuana law is tested in court, employers like yourself will probably continue to have unanswered questions.

Medical marijuana law and Sheakley

Keeping your workforce safe is priority one for your company. The medical marijuana law does not require employers to forego zero-tolerance drug policies in the workplace or to take these factors out of the hiring or dismissal process. While exactly how the law will ultimately impact employers’ policies long-term will most likely be decided in courts, Sheakley can help you develop better policies and provide assistance with training programs to help you develop workplace drug policies that allow to remain compliant with the law while achieving your safety goals. Sheakley’s Workforce Management Services experts provide complete safety resources for your company.

Get your free safety consultation today with an expert from Sheakley. Stay up-to-date on all things Sheakley by subscribing to our blog and following us on social media. Join in the discussion by commenting below.


You may want to read

See all articles
X
X
X
X