Many employers, especially those in the construction industry, require employees to be drug-free and spend time, money, and resources drug testing to ensure safety. A zero-tolerance policy could mean that an employee who tests positive for marijuana would face immediate termination. Given the current trend of many U.S. states legalizing marijuana, for medical and/or recreational use, employers may need to evaluate their current drug testing policies.
On September 8, 2016, Ohio House Bill 523 became effective, authorizing the use of marijuana for medicinal purposes and to establish the “Medical Marijuana Control Program.” The Control Program is currently in the process of creating and implementing various rules, policies, and procedures regarding patients, cultivators, dispensaries, physicians, and testing laboratories relating to medical marijuana use. The program is slated to be operational by September 8, 2018. What does this mean for employers who drug test their employees for marijuana use in Ohio?
The newly-enacted R.C. 3796.28 places several employment-related limitations on the new medical marijuana law. The new law does NOT: R.C. 3796.28 places several employment-related limitations on the new medical marijuana law. The new law does NOT:
- Require an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;
- Prohibit an employer from taking an adverse employment action against a person because of that person’s use, possession, or distribution of medical marijuana;
- Prohibit an employer from enforcing or establishing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;
- Interfere with any federal restrictions on employment;
- Permit a person to sue an employer for taking an adverse employment action against the person for reasons related to medical marijuana; or,
- Affect the authority of the administer of workers’ compensation to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program.
Though R.C. 3796.28 makes it seem like business may continue as usual regarding employees who use medical marijuana, several questions remain regarding what changes may eventually occur under federal law, and the applicability of Ohio Civil Rights laws to employees who use medical marijuana. A recent Massachusetts Supreme Court case, Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017) held that an employee could file suit against her former employer for terminating her due to her use of medical marijuana.
In the Massachusetts case, the plaintiff was instructed by her doctor to use a small amount of medical marijuana prior to meals in order to increase her appetite and to allow her to avoid being underweight. The court held that the employer violated Massachusetts Civil Rights laws as the plaintiff was considered to be disabled. The court reasoned that because she had Crohn’s disease, the employer failed to work with her to allow a reasonable accommodation in order to allow her to perform the essential function of her job. The accommodation would have been to allow plaintiff an exception to the employer’s zero-tolerance drug policy to accommodate her marijuana use.
Marijuana use still remains illegal under federal law, but that may change. At this time, eight (8) states, plus the District of Columbia, allow for recreational marijuana use, and twenty-nine (29) states, including Ohio, allow for the medical use of marijuana. As more states adopt laws allowing marijuana use, the federal government could decide to follow suit. Should this be the case, medical marijuana users may be able to defend their use of marijuana under the Americans with Disabilities Act (ADA). Rhode Island and Maine currently prevent employers from taking adverse employment actions in response to the employee’s use of medical marijuana, while Ohio, California, Washington, and Oregon allow employers to take adverse employment action for medical marijuana use, despite antidiscrimination laws.
It is not suggested that employers allow their employees to be under the influence of marijuana while on the clock, as this would certainly place an undue burden on employers. Being under the influence of any drugs or alcohol while at work may always be prohibited. However, employers could allow slight exceptions for medical marijuana users by coming up with new parameters to test what is considered to be under the influence.
Marijuana is different from other drugs in that the metabolites may remain in a person’s urine for up to twelve weeks after use, long after the user is no longer under the influence of the drug. Compare this to many opiates, which can be detected in urine only 24-48 hours after use, and cocaine, which is typically only found in urine for 2-4 days after a single use. The fact that marijuana is detected in a drug test simply does not mean that the employee has recently been using or that the employee has been under the influence while on the clock. Employers could instead focus on other methods that test immediate use and/or impairment like they do for alcohol.
Employers subject to the Department of Transportation safety rules or the Drug Free Workplace Act for federal government contractors must still make a good faith effort to maintain a drug-free workplace while marijuana is still illegal under federal law.
If you would like to talk about or have any questions, please do not hesitate to contact Lynn Schonberg, Nick Nykulak or Ami Imbrogno at 216-447-1551.