This document discusses the impact of legalizing marijuana and drug testing in the workplace. It notes that 23 states have legalized medical marijuana, creating challenges for employers maintaining drug-free workplaces. Ohio ballot issue 3 proposes legalizing medical and recreational marijuana use for those over 21. The document outlines employers' responsibilities regarding drug policies, noting they are not required to accommodate marijuana use given its federal illegality. It provides best practices for employers, such as maintaining consistent drug policies prohibiting impairment from any illegal substances.
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Legalized And Medicinal
Marijuana At Work
• Employers benefit from drug free workplaces
• Positive drug tests continue to eliminate job applicants
• “Medical marijuana” has created unknown
territory and poses many challenges for a
“drug-free workplace”
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Ohio
Issue 3 – Marijuana Reform
• Proposes the legalization of the use of medical marijuana by
patients with debilitating medical conditions
• Proposes the legalization of marijuana infused products for
personal use in certain amounts for individuals 21 years of
age or older
• Prohibits persons from operating or being in physical control
of a vehicle, aircraft, train or motorboat while under the
influence of medical marijuana, marijuana, homegrown
marijuana or marijuana-infused products, and requiring the
General Assembly to pass laws imposing criminal penalties
for doing so
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Ohio
Issue 3 – Marijuana Reform (cont’d.)
• Provides that nothing in the Amendment is intended to require
an employer to permit or accommodate the possession or use
of medical marijuana, marijuana, homegrown marijuana or
marijuana-infused products in the workplace, except that a
patient with a medical marijuana certification may self-
administer the medical marijuana subject to the same
conditions applied to prescribed medications
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Statistics
23 states and the District
of Columbia currently have
medical marijuana laws
Positive drug tests have
increased for the first time
in more than ten years at a
5.7% increase
Marijuana continues to be the
drug of choice
• Statutory language varies but each state
authorizes individuals with qualifying
medical conditions to legally use marijuana
• Colorado, Washington, Alaska, Oregon and
the District of Columbia have legalized
marijuana for recreational use
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What is Medicinal Marijuana?
• Medical cannabis (or medical
marijuana):
The use of cannabis and its
constituent cannabinoids, as
medical therapy to treat disease
or alleviate symptoms
• The FDA approved THC to treat
nausea and improve appetite
People who receive a
prescription for
medicinal marijuana are
given a card from
a doctor.
The card should be on
their person at all times.
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What is Medicinal Marijuana?
Reasons for Use
• Pain is the main reason medicinal marijuana is prescribed
• Muscle spasms caused by multiple sclerosis
• Nausea from cancer therapy
• Poor appetite and weight loss caused by
chronic illness, such as HIV, or nerve pain
• Seizure disorders
• Crohn’s disease
• Glaucoma
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What is Medicinal Marijuana?
• How is it Used?
• Smoked
• Vaporized (heated until active ingredients are released, but no
smoke is formed)
• Eaten (usually in the form of cookies or candy)
• Taken as a liquid extract
• Side Effects
• Dizziness
• Drowsiness
• Short-term memory loss
• Euphoria
• More serious side effects include severe anxiety and psychosis
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Lawsuits Involving Medicinal Marijuana
Lawful Termination?
Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. App.2013)
• Colorado Court of Appeals affirmed company’s right to fire
employee, but the Colorado Supreme Court accepted the case
• On June 15, 2015, the Colorado Supreme Court ruled that Dish
Network LLC was within its rights to fire a quadriplegic customer
service representative who used medical marijuana
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Lawsuits Involving Medicinal Marijuana
• Colorado Court of Appeals:
– Smoking marijuana was not a “lawful” activity within the meaning
of the statute
– For an activity to be lawful, the activity must be legal under
federal and state
– The Coats case clarified that an employer is still permitted to
terminate an employee for marijuana use, even if the employee
does not use the marijuana on the employer’s premises and is
not under the influence while at work
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Lawsuits Involving Medicinal Marijuana
• Dish fired Coats for violating its drug policy after a positive test
• Coats’ conduct was unlawful under federal law, despite the
Colorado state law that allowed the use of medicinal marijuana
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Lawsuits Involving Medicinal Marijuana
Practical Implications
• State medical marijuana laws do not explicitly provide protected
status to patients
• State supreme courts have upheld companies’ decisions to fire
employees for their cannabis use outside the office.
• Judges: Medical cannabis laws only protect patients from criminal
penalties, not from termination by their employers
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The Effects of Drug Use
• Decreased Productivity
• Poor Performance
• Increased Absenteeism
• Safety Hazards
• Health Insurance Cost Increase
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What Laws Employers Should Consider
• Americans with Disabilities Act (ADA)
• State Civil Rights Act
• Family Medical Leave Act (FMLA)
• Fourth Amendment
• Employment/Union Contracts
• Right to Privacy
• Defamation
• Workers’ Compensation
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What Are the Responsibilities
of the Employer
Must an employer accommodate?
• Under the ADA, an employer generally is required to provide
reasonable accommodation to a qualified disabled individual unless
the accommodation would impose an undue hardship
• Marijuana use is illegal under the federal Controlled Substances Act,
and therefore does not need to be accommodated under the federal
ADA
• 23 states have legalized medical marijuana use,
creating a conflict with state laws
– Employers may be on notice of an employee’s disability if the employee
inquires about the company’s policies regarding the use of medical
marijuana.
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ADA – The Duty to Accommodate
• Test for illegal drugs that
reveal the presence of
legally prescribed medication
must be treated as a
confidential medical record
• Under the ADA, a person
illegally using drugs is
excluded from coverage
• The employer must treat
those who do illegal drugs
and alcohol users to the
same performance and
behavior standards
applicable to all employees
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Practical Implications
• Medical marijuana is currently illegal under
Ohio law and federal law
• Ohio companies do not have an obligation to
accommodate an employee’s medical marijuana use
and except the employee from the zero-tolerance
drug policy (this may soon change)
• Human resources personnel should know how to
handle medical marijuana issues as they arise
What Now In Ohio
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What Happens if Issue 3 Passes
• Generally – may not ask employees about prescription medication
– Prohibited from asking employees about illegal drug use
• Allowed to possibly ask (if there is an issue with public safety)
– Whether he/she taking any prescription drugs or medications
– Monitor the employee taking these medications
• Those who use medical marijuana may create a class of protected
“registered” users
• Prohibits arrest/prosecution for authorized use, sale, possession
• Will only protect individuals from prosecution and other adverse
action from state, not from consequences for violation of workplace
policies
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Drug-Free Workplace Polices
Drug Free Workplace Act
• Drug-free workplace policies promote safety and accountability
• Act requires any entity that receives federal contracts with a value of
more than $100,000 or that receives any federal grant to maintain a
drug-free workplace
• Employees who work for federal contractors may be subject to
discipline or termination if they use marijuana while on the job or
show up for work under the influence, regardless of whether
marijuana is permitted by state law
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The Department of Transportation
requires drug and alcohol testing of
safety-sensitive transportation
employees in aviation, trucking,
railroads, mass transit, pipelines,
and other transportation industries
• Marijuana’s permitted use under state
law for either medical or recreational
purposes will not excuse an
employee’s positive drug test result
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Drug-Free Workplace Policies
• Under federal and state laws and
regulations, employers generally
have a duty to provide a safe work
place for all employees
• Would support an employer’s
decision to terminate an employee
who poses a threat to the health
and safety of other workers due to
impairment from the use of
medical marijuana
• Just as would be the case for other drugs or
alcohol
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Drug-Free Workplace Polices
What Should a Drug Policy Contain
• The reason for the policy
– Discover and correct drug/alcohol use in the workplace and deter
drug/alcohol use by others
• What it is designed to do
• How it was developed
• The employee behaviors that are expected
• Exactly what substances and behaviors are prohibited
• What legal drugs are allowed on the job
• Substance abuse testing and the process
• Precisely what will happen if an employee violates the policy
• Procedures for determining if an employee has violated the
policy
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Drug-Free Workplace Polices
What Should a Drug Policy Contain (cont’d.)
• How appeals will be handled
• Efforts to help employees comply with the policy
• How requests for help will be handled
• How the policy interacts or is affected by Workers
Compensation
• How employee confidentiality will be protected
• How fairness and consistency will be maintained
• The Employee Assistance Program, if applicable
*Federal contractors require specific language as required by the
Drug Free Workplace Act.
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Drug Free Safety Program Policies
• Administered by BWC
• Premium discounts offered for implementing loss-prevention
strategy
The Program should have the following:
• Written substance policy and operational procedures
• Recordkeeping practices
• Testing agreements
• Employee assistance plan
• Provide employee education
• Provide supervisor training
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Best Practices
• Continue to comply with federal regulations
• Employers are still in control and free to decide what
their policies should look like and how they will
address claims related to medical marijuana use –
Be Consistent for all Illegal Drugs
• Ensure policy prohibits the use of marijuana in and
outside the workplace (pre-employment and random
testing)
• Articulate whether you wish to ban
all employee drug use or merely impairment
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Best Practices
• Communicate the policy to all employees and clearly
state expectations
• Train managers about confidentiality relating to
sensitive employee information including drug-tests
and requests for accommodations for medical
conditions
• Know the laws of the state where employees work
• Be mindful of the information the company receives
regarding one’s disability because an
accommodation, other than one involving medical
marijuana, may be required
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Janica Pierce Tucker
Taft Stettinius & Hollister LLP
65 E. State Street, Suite 1000
Columbus, Ohio 43215
(614) 334-6182 / jpierce@taftlaw.com
Questions?
