Great Lakes Trenchless News

  • Medical Marijuana is Here - Now What?

    Ohio has just become the 25th state to legalize medical marijuana and, most importantly, this probably ends any ballot initiative to amend Ohio's Constitution this Fall to allow recreational marijuana – just what the Statehouse hoped.  Governor Kasich signed the legislation on June 8 and it becomes effective in early September, but various state agencies must now create the framework for the "seed-to-sale" system for growing, testing and dispensing marijuana derivatives for 20 medical conditions, including chronic pain – anticipate at least one year.  Users will not be allowed to smoke or grow their own marijuana but may use vaping products, patches, oils and edibles.

    What are employers to do now that medicinal marijuana is becoming lawful and employees believe that they can "smoke dope" before, during and after work without fear of discipline or discharge?  The simple answer is that employers should "stay the course" and administer their substance abuse policies the same as before the legislation was enacted.  The reason for this is that Ohio's new law permits such and also because marijuana in any form continues to be a Schedule One illegal drug unless and until the Feds de-schedule it.

    Even if the marijuana is prescribed by a physician to treat a disability recognized under the American with Disabilities Act and even if the marijuana is used during off-work time, these employees still can be terminated for testing positive. It is not a violation of the ADA for an employer to refuse to accommodate the medicinal use of marijuana, but most employees will probably think that now that the law has been passed, they may use marijuana without reprisal by their employer.  This expectation will cause additional challenges for employers as employees report to work under the influence.  So, here are some recommendations:

    • Continue to enforce your lawful drug-free workplace substance abuse program.
    • Reaffirm your policy to your employees.
    • Don't race to soften your policy to allow use under some circumstances.
    • Address the use of prescription drugs in your policy to insure authorized and prescribed use.
    • Consider incorporating "reasonable suspicion" criteria for drug testing and train supervisors on the signs of being impaired.
    • If an injury covered by Workers' Compensation occurs, insure that you have reasonable suspicion for testing.
    • If your policy mandates automatic testing for each employee injured, consider whether to modify this to testing only for reasonable suspicion in light of OSHA's May 12 commentary that effective August 10, 2016, mandatory testing will be considered in violation of OSHA's Workplace Accident Reporting Procedure – 29 CFR 1904.35b(1)(i).
    • Federal contractors and Department of Transportation employers must remain strict in the application of the substance abuse mandates previously employed.
    • Closely monitor whether the federal government de-schedules marijuana and thereby permits state laws to override the previous federal prohibitions.
    • Determine the local laws in any state in which you operate before creating a substance abuse policy or discharging or disciplining for violation of that policy. 
    • Contest unemployment compensation claims of employees terminated for marijuana use because testing positive will constitute just cause for termination.
    • Monitor developments related to Ohio's new marijuana law as the program develops over the next year. 

                While Ohio's new law probably will not change how employers address substance abuse issues in the workplace, OSHA's May 12 pronouncements and future state and federal regulations may very well do so.  This is a rapidly developing area of the law that requires you to consult with your employment law counsel to avoid potential liabilities.

               

    Bob Dunlevey is an OSBA Board Certified Labor and Employment Law Specialist.  Contact him at 937-223-6003.