Issue 3: How Would Marijuana Legalization Affect Employers?

On November 3, 2015 Ohioans will make their way to the ballots and have the option to vote yes or no on Issue 3. If passed, Issue 3 would legalize the medical and recreational sale and use of marijuana in the state of Ohio. But what does it mean for employers?

We spoke with Jon Hyman, Partner at Meyers Roman Friedberg and Lewis, and ERC Partner, about what employers should be thinking about in case issue 3 does pass and how to prepare for its arrival.

What employers should realize

Employers need to realize that if Issue 3 passes, it is going to legalize recreational marijuana use in Ohio, but not in your workplace.

“It will not give employees a license to get high at work,” says Hyman. “For employers’ purposes, marijuana will not be that much different than alcohol. Just like employees cannot go out and have a drink during their lunch break, they also will not be able to pull a joint out of the glove box of their car during their break.”

However, because marijuana use will be legal, it’s more important than ever for employers to have a drug testing program in place to ensure that you can confirm an employee’s apparent impairment as legitimate.

[Editor’s note: Check out this informative article on Legalized Marijuana: An Escalating Issue for Employers, from ERC Preferred Partner Corporate Screening]

“Unlike other substances, however, a positive drug test alone likely will not suffice to support an employee’s termination. Marijuana stays in one’s system for as long as 30 days. Thus, a positive test will not prove that an employee was high at work. Instead, employers will have to rely on the positive test plus anecdotal evidence about an employee’s erratic behavior,” says Hyman.

Medical use in the workplace

Hyman points out that the one key difference with marijuana that distinguishes it from many other intoxicating or impairing substances is its medicinal use. So the question is raised…can an employer fire an employee who tests positive for legally prescribed marijuana?

“The ADA does not cover employees who are currently under the influence of illegal drugs. If legally prescribed, however, marijuana is not illegal. Thus, its treatment under the ADA is similar to any legally prescribed medication,” says Hyman.

According to Hyman, here are four general thoughts on the handling of legally prescribed medical marijuana:

1. Blanket prohibitions are illegal. The ADA imposes on employers an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescriptions medications violates this obligation.
2. Drug testing. Drug testing programs can include legally prescribed drugs. However, an employer cannot have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescription drugs that would explain the positive result.
3. Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis, determine whether it can make a reasonable accommodation that will enable the individual to remain employed.
4. Post-disclosure handling. After an employer learns that an employee is taking a prescription drug that may affect job performance, a medical certification regarding the effect of the medication on the employee’s ability to safely perform essential job functions should be requested. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.

Here are additional resources to get better acquainted with Issue 3.

• Ohio Marijuana Legalization Initiative, Issue 3
• Ohio’s attempt at an off-duty conduct law