With just over a year to go before medical marijuana becomes legally available in Ohio, employers are already updating their drug policies to cover workers on the job.
Traditionally, company drug and alcohol policies have prohibited anyone from having illegal drugs like marijuana in their system. But what happens when that drug becomes legal?
Many manufacturers have adopted zero-tolerance policies that prohibit medical marijuana use, even at home and on weekends. Ross McGregor, executive vice president of Pentaflex, a metal stamping company in Springfield, said safety is his number one concern.
“I can’t risk having somebody coming out on the shop floor impaired and operating this type of equipment or driving a tow truck. Other employers, particularly manufacturers have been very vocal about that when the discussions were going on about the legislation,” McGregor said.
To help the controversial bill win maximum support in the Republican dominated legislature, the sponsor, Rep. Steve Huffman, R-Tipp City, put as much employer protection into the bill as possible.
“The basic message (in the bill ) was it is up to each individual employer and they can choose if they will recognize medical marijuana as a medicine or continue as drug-free. It is totally up to them and gives them the ability to choose. To me it all comes down to the workplace policy. Either way they need to have a firm policy and stick by it in every individual workplace,” Huffman said.
The bill passed and was signed into law by Gov. John Kasich, taking effect on Sept. 8, 2016. It started a two-year timeline of preparations by the newly-created Ohio Medical Marijuana Control Program. Companies began their preparations by updating their policies in anticipation of the Sept. 8, 2018 start of medical marijuana sales in Ohio.
Government agencies have begun preparing their policies as well. The Montgomery County commissioners employ 1,767 people in about two dozen agencies. Those agencies include a wide variety of focus, from Children’s Services, which supports foster care for children and investigates child abuse, to Environmental Services, which provides water and sewer to homes and businesses in the region.
Since passage of the Medical Marijuana law, the county has updated its “Alcohol and Drug-Free Workplace Policy.”
It states; “The use, sale, distribution of possession of marijuana, whether or not it has been medically prescribed, is prohibited within the workplace and during work hours including lunch.”
While medical pot usage is banned by the county during the business day, its usage is not expressly prohibited during off-hours. Still, it does not condone it either.
Amy Wiedeman, assistant county administrator, said in a written statement said that employees “cannot be under the influence of drugs or alcohol during work hours. That will not change as a result of the medical marijuana legislation. However, we will be reviewing our testing procedures as they pertain to latent marijuana or any other drugs in the system.”
There is at least one local business owner who believes medical marijuana may be used by workers under the right circumstances. Renea Murnahan-Turner is the owner of the Champion City Sports Club in Springfield and CEO of a new venture, Cannabis For Cures. She is a cancer survivor and advocate who believes medical marijuana can be used responsibly by people with the medical conditions designated by Ohio’s new law.
“If we get cannabis out there, cannabis is medical. It is non-addictive and you cannot overdose on it,” Murnahan-Turner said. She hopes that Cannabis For Cures will become a research, development and educational force in the region.
“The employers who are not as open about it or want to get involved, I feel if they get educated they will do that ( accept it ) at a later time,” said Murnahan-Turner.
Attorneys who represent employers and employees agree that the court system will have much to do when medical marijuana becomes legally available and workers with the allowable medical conditions want to consider its use. Deborah Adler, who represents employees, said legalizing medical marijuana is the right step for the state of Ohio.
“We have many people who work and have intractable pain. We see many individuals who suffer significant injuries.They are off work for a period of time. They are able to go back to work. Where the rubber is going to hit the road is where those people are working is there a question of their continued use. Those are some issues that ultimately are going to end up in the courts,” Adler said.
Robert Dunlevey, an attorney who represents employers, said he believes generally people in any work environment would risk their jobs if they use medical marijuana, even at night and on weekends, because blood tests days later would still come back positive for marijuana use. Random drug tests or those administered on the suspicion of impairment would provide evidence that the employee was in violation of drug free workplace rules and open them to discipline, including dismissal.
Workers could not only lose their jobs, but if a workplace injury occurs, according to Dunlevey, the state’s workers compensation system may not cover their medical bills.
“What happens is the burden of proof shifts on the claim. The employee is heavily burdened to prove that he or she was not impaired at the time of the injury. If there is impairment, the claim is going to be denied,” Dunlevey said.
One new court ruling that has caught the attention of employers comes from Massachusetts. That state’s Supreme Court ruled an employee, Cristina Barbuto, could pursue claims against her former employer for her firing. She argued she could not be fired for her medical marijuana use under protections afforded her under federal disability laws.
Dunlevey said until now, federal law always trumped state law. Since marijuana remains an illegal drug under federal law the prohibition against its use was upheld when it conflicted with state statutes.
But in this new case, the Massachusetts Supreme Court ruled the employer should provide an accommodation for the employee and her medical condition, Crohn’s disease.
“For the first time we have Massachusetts saying ‘Oh no, we think that under our handicapped laws an employer has an obligation to consider an accommodation for that employee to use it’ instead of just automatically terminating her for failing to pass the drug test,” Dunlevey said.
While the courts will be resolving conflicts involving employee rights, the Dayton Area Chamber of Commerce is encouraging employers to review and update their workplace policies now, long before the legal availability of medical marijuana. Chris Kershner, chamber vice president of Public Policy and Economic Development, said his organization played a vital role in convincing lawmakers to build protections for employers in the medical marijuana law last year.
Now, the organization is working to keep members informed as the law is implemented.
“Employers really need to be on their game and make sure their HR policies are updated to meet the needs of their workplace and how they want to run their business,” Kershner said. Likewise, he said businesses are being encouraged to communicate that updated policy to workers so they know what is expected of them. “It’s only fair that the employees are aware of these updated policies so that they can hopefully respect them and respect the wishes of their employer,” Kershner said.
The new law allows for medical marijuana sales to start in September 2018, although the location of dispensaries has not been decided yet by state regulators. Many communities surrounding Dayton have passed bans on both cultivation and stores to sell medical marijuana, although the city of Dayton remains open for marijuana businesses with a state permit. Zoning records obtained by this newspaper indicate six locations in Dayton are potential sites for marijuana cultivation.