Medical marijuana doesn’t trump zero tolerance in Ohio

Medical marijuana will be legal in Ohio next week, raising a series of issues for employers and employees alike.

The bottom line: Not much will change, even after the law takes effect Sept. 8.

Regardless of what state law says, marijuana is illegal on the federal level and employers will retain the right to establish and enforce drug testing and substance abuse policies, including pre-employment and random drug testing.

But some employers fear the new medical marijuana law could lead to confusion among employees who believe their employers are required to accommodate marijuana use if it is recommended by a doctor.

>>>RELATED: Research suggests pot saves lives.

“We will have to tell our employees that even though the state allows (medical marijuana use), the federal government does not, and we have to comply with federal regulations,” said Rich Little, president of Starwin Industries in Dayton, a contract manufacturing facility serving the aerospace and automotive industries.

“But the state says, ‘Well, your employees can take drugs.’ So I’m stuck between privacy issues, federal regulations and workplace safety. It’s a bad place to be.”

Little notes that because his company works on federal contracts and those contracts require a drug-free workplace, his company has been forced to adopt a zero-tolerance policy for anyone testing positive for marijuana or any other intoxicant while at work.

But unlike alcohol and other drugs that leave the bloodstream within a day, marijuana can stick around a lot longer. Consequently, some employers may be forced to terminate employees for engaging in state-sanctioned marijuana use, even though there is no indication of impaired work performance.

>>>RELATED: Medical marijuan sales banned in Beavercreek.

“It puts employers in a really difficult situation,” Little said. “I don’t have any choice. I can’t have somebody on the manufacturing floor who is using marijuana. But does that mean they’re impaired?”

Protecting employees

A handful of states, including Arizona, Delaware, New York and Minnesota, have enacted laws to protect employees who possess a medical marijuana license and test positive for marijuana. In those states, the burden is on the employer to prove that the employee not only tested positive but also was impaired at work.

Employees in Ohio enjoy no such protections. The new law is clear: Dismissing an employee for violating the drug policy is considered just cause for termination, regardless of whether the employee was impaired or not, according to Christopher J. Lalak, a labor and employment attorney with Benesch, Friedlander, Coplan & Aronoff in Cleveland.

Lalak, who earlier this year conducted a webinar for the Ohio Chamber of Commerce on workplace issues surrounding medical marijuana, told this newspaper that employers not only are allowed to enforce their drug-free workplace policies under the law, but workers fired for violating those policies won’t be able to sue their employer — even if the marijuana was prescribed by a doctor and used during off-work time.

Lalak said the confusing and conflicting laws require a thorough policy review in Ohio.

“Employees should absolutely be checking with their employers,” he said. “Employers should really be taking a look at their policies as well.”

Privacy rights

Despite the law’s wording, employers must be cautious. Even if terminating an employee for marijuana use is legal, asking an employee whether they hold a medical marijuana card or looking into their medical history could be considered a violation of employee privacy rights.

“If an employee is using medical marijuana, and they test positive, they will be subject to our drug-free workplace,” said Ross McGregor, executive vice president of Pentaflex Inc. in Springfield and a former state representative. “But I’m not going to try and find out who that is. It would be a waste of time, and it also could be potentially a violation of an employee’s privacy. I understand where that fine line is.”

McGregor said communication is the key to navigating the disconnect between state and federal laws regarding marijuana use in the workplace.

“It’s about communication with the workforce, and making sure they’re aware that on Sept. 8, all of a sudden, you can’t just go out and get a recommendation for medical marijuana. It could impact your employment.”

Staff writer Laura Bischoff contributed to this report.

Reader Comments ...

Next Up in Politics

Ohio leaders critical of Trump’s comments on Russia, call Putin a ‘foe’
Ohio leaders critical of Trump’s comments on Russia, call Putin a ‘foe’

Ohio lawmakers and other U.S. leaders say Russia meddled in the 2016 presidential election in the U.S. and took issue with President Donald Trump’s comments Monday during a summit meeting with Russian President Vladimir Putin where the president declined to back his own intelligence services. “Russia absolutely meddled in our election...
Kasich talks arms control, ‘fraying’ Western stability under Trump
Kasich talks arms control, ‘fraying’ Western stability under Trump

Ohio Gov. John Kasich said he hopes the U.S. and Russia will re-engage in arms control talks following President Donald Trump’s meeting with Russian President Vladimir Putin in Helsinki. “What I hope they get out of this summit is an agreement to sit down and continue arms control discussions,” Kasich said Monday morning on CNN before...
Trump can’t beat Putin at his own game
Trump can’t beat Putin at his own game

Before last Thursday, President Donald Trump's meeting in Helsinki with Russian President Vladimir Putin already promised to be interesting. Then special counsel Robert Mueller's team indicted 12 Russian military intelligence officers on charges of interfering in the 2016 U.S. presidential election, and things got even more complicated.  Monday's...
With Trump in the White House, candidates who sound like him hit the campaign trail
With Trump in the White House, candidates who sound like him hit the campaign trail

In last week's debate between Georgia's Republican candidates for governor, policy was quickly abandoned as Lt. Gov. Casey Cagle and Secretary of State Brian Kemp lit into one another with a familiar slate of accusations.  Kemp called Cagle a liar at least a dozen times. Cagle accused Kemp of conspiring with another Republican to release a recording...
‘This loss is on me’: Rep. Crowley tries to calm tensions in first interview since primary shocker
‘This loss is on me’: Rep. Crowley tries to calm tensions in first interview since primary shocker

Rep. Joseph Crowley, the House Democratic Caucus chairman, took personal blame for his shocking primary loss last month and sought to defuse tensions within his party on Sunday in his first extended interview since the election.  "This loss is on me," said Crowley of New York, who lost his bid for renomination for an 11th term on June...
More Stories