Employers in Ohio face a challenging situation with the advent of medical marijuana and the issues it presents in the workplace. The law entitles employers to a drug free workplace and the enforcement of a zero-tolerance policy. However, to date, there is not a “real time” test to determine whether an employee is impaired or “high”. Drug tests generally only determine whether or not there are marijuana metabolites (cannabinoids) present, and the amount present, in the employee’s system. Further, how are employer’s going to respond when valued employees, including executives and management, test positive for legal marijuana use? This is an especially vexing question given the tight employment environment and the difficulty in securing and maintaining good employees.
Ohio’s marijuana law is unique amongst the several states which currently authorize medical marijuana. Ohio’s law is relatively restrictive in how and when an individual may use medical marijuana. Further, the law in Ohio allows employers to terminate an employee with a positive test for marijuana. In other words, Ohio employers are entitled to a “drug free workplace”. Employers should also remember that marijuana in all its forms remains illegal under federal law. Marijuana under federal law is a Schedule I drug which means there is no medical value whatsoever according to the federal government. To complicate the matter further, over half of the states in our country have legalized marijuana either for medical purposes or for personal use. This has resulted in a patchwork scenario of multiple and often conflicting state laws. This presents a harrowing challenge for employers operating in multi-state jurisdictions.
Employers are often caught in the middle trying to comply with various state marijuana laws, doing the right thing for safety, efficiency, regulatory compliance, and even company insurability. There are states, such as Connecticut, which protects the employee’s right to use marijuana. The employers in Connecticut cannot discipline or otherwise discriminate against an employee due to marijuana use. But, as we stated previously, Ohio is different. In Ohio, employers are at minimal risk of enforcing drug free policies because the marijuana law, known as Ohio House Bill 523, explicitly denies an employee’s right to use legal medical marijuana against the employer’s drug policies.
The issue of marijuana and employment policies will continue to percolate in the future. We will monitor the situation and provide periodic updates and insights. Please contact a member of our Labor & Employment Section with further questions or comments.