Legally Speaking: Just Because It’s Legal…

Bob Dunlevey

Bob Dunlevey is an attorney with Dunlevey, Mahan & Furry (www.dmfdayton.com) in Dayton, Ohio. He is well recognized for his counseling and defense of businesses having employment-related issues, including federal and state court litigation and OSHA proceedings, wage-hour compliance, collective bargaining, wrongful discharge defense, and regulatory compliance. He can reached at rtd@dmfdayton.com.

November 1, 2015

Even if marijuana is legal or becomes legal in your state, it does not mean that employees can use or possess it on the job, or come to work under the influence of it.

Many employees are under the mistaken belief that if a state passed a law legalizing the use of marijuana, that an employer cannot create or enforce policies which forbid the use, possession, and dissemination of marijuana in the workplace—this is untrue. Employers will continue to be permitted to promulgate reasonable work rules and regulate the workplace to ensure a safe work environment free of hazards. In fact, the Occupational Safety and Health Administration (OSHA), the Department of Transportation, and other state and federal agencies demand it.

Some states such as Minnesota, Arizona, and Delaware have added specific protections to their marijuana laws for workers possessing medical marijuana prescriptions in an attempt to shield those employees from adverse employer actions when the employee merely tests positive, but is not impaired. These specific protections are not being upheld by courts at this time, primarily due to the classification of marijuana under federal law as a Schedule I drug. Even if marijuana is declassified under federal law and the state law forbids an employer to take action against an employee using it, that employer may still discharge or discipline the employee if he or she is shown to be working while impaired.

Ohio’s proposed constitutional amendment provides that nothing in the law is intended “to permit or accommodate the use … [or] possession … in the workplace or … employer’s ability to restrict the use of such products by employees, except that a patient with a medical marijuana certification may self-administer the medical marijuana subject to the same conditions applied to administration of prescribed medicines.”

Therefore, the proposed law confirms that employers can forbid the use and possession of recreational marijuana in the workplace. Moreover, even if an employee is using marijuana for medicinal purposes, the employer need not permit the employee to use it during working time if the employee’s possible impairment could create an unsafe situation for the employee and fellow workers. Remember, this constitutional provision would still be trumped by federal law, which still treats marijuana as an illegal drug. The text of Ohio’s constitutional amendment is available at http://tinyurl.com/nt2sbwc.

A recent Colorado State Supreme Court ruling has confirmed that the federal drug laws trump state laws on this topic. At least until marijuana is declassified by the Federal government as a Schedule I drug, employers can ban the use, possession, and dissemination of it in the workplace in states where it is legal. This is the case even if the employee claims he or she needs an accommodation under the Americans with Disabilities Act. The Act does not protect current drug users, and in that case no accommodation need be accorded. If and when marijuana is declassified by the Federal government, employers will be forced to consider whether an employee using marijuana for medicinal purposes during working time or testing positive after off-duty use must be accorded a reasonable accommodation—provided it does not present a direct safety threat to the employee or the fellow workers.

Regardless of what may be the eventual ruling on state laws clashing with employers’ rights to regulate their workplace, many employers are modifying their substance-abuse policies to move toward using a standard of impairment for discipline instead of just relying upon a positive drug-screening test. The reason for this is that employers need not permit impaired employees to perform work without regard to state marijuana laws. Further, employers should move toward identifying safety-sensitive jobs, which may result in holding employees in those positions to a higher standard, excluding the need to show impairment. Job descriptions will need to be modified as well if this approach is adopted.

As the laws of different states vary so greatly, and because court cases are rapidly changing the complexity of the issues, each employer needs to do a specific analysis of the law in their state and their own working situation before promulgating and enforcing policies related to marijuana.

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