Businesses are working to decide how they will respond to an employee’s approval for and use of medical marijuana, and the solution is not a simple one.
Ohio House Bill 523 legalized marijuana as medicine in the state in 2016 and medical marijuana sales launched in January.
Medical marijuana patient counts have grown exponentially in Ohio since the program came online, with more than 31,075 registered as of April, according to the latest records from the Ohio Medical Marijuana Program.
Advocates say offering medical marijuana as an option for patients in Ohio, the seventh most populous state, provides an effective alternative to highly addictive prescription medications such as opioids.
Although medical marijuana is legal in Ohio, that’s not the case on the federal level, and state employers are testing for it just as they would for any other illegal drug. That’s left companies working to decide if they should fire employees who use the drug or refuse to hire them in the first place.
Most companies likely will say “no” to medical marijuana usage by an employee across the board, according to Kristy Duritsch, executive director for Safety Council of Southwestern Ohio.
“Yes, No, Maybe? Medical Marijuana in Your Drug Free Workplace,” a workshop recently offered in Monroe by Columbus-based Working Partners, “really stressed (that) companies need to get all their ducks in a row ASAP no matter what their stance is going to be,” Duritsch told this news outlet.
“They need to justify it as no matter their decision, they will receive pushback from either side. They need to have clear reasons and policies that support those decisions.
“They need to include input from their lawyers, their insurance companies, liability issues, fleet issues, landlord, clients and employees … safety sensitive and security sensitive positions and functions.”
The Bureau of Workers’ Compensation will not cover medical marijuana, Duritsch said.
Dan Bates, president and CEO of the Greater Hamilton Chamber of Commerce, said he knows of several companies saying “no way” as a response to an employee’s recommendation for and use of medical marijuana.
“I’m not sure how long they can get away with it and what the legalities will be when it comes to potential issue jeopardizing employment,” he said.
One of the challenges is that medical marijuana is legal, but you still cannot get a prescription for it, Bates said.
“You can get a referral but you can’t get an actual prescription at this point,” he said. “For CDL and other types of certifications that require drug testing if someone has test positive for a drug but they have a prescription for it it’s considered a false positive which means they may have opiates in your system but if they’re prescribed an opiate then they get a pass.”
If they do not have a prescription for a drug that is found in their system then they fail the drug test, which could jeopardize their employment, Bates said.
“The problem with marijuana is that it stays in your system for 30 days minimum, so somebody could be on a medical marijuana treatment and they stop taking that treatment,” he said. “They will still test positive for marijuana 30 days from the time they have their last treatment if they don’t have a prescription for it because they can’t get a prescription for it that would not qualify under the current guidelines as a false positive which means they would test positive for marijuana.”
If a company has a zero drug tolerance policy they couldn’t fact fire that employee for testing positive for marijuana that is still remaining in their system even if they have currently not used it recently, Bates said.
“That’s what I’m talking about when it could be grounds for a lawsuit because medical marijuana is now legal however it’s not actually under a prescription so the employee does not have that protection of having a drug in their system with with a prescription. many of my members are saying we have a zero drug policy,” he said. “So if we had somebody who tested positive in the scenario that I described, it would probably be grounds for termination based upon their employee handbook.”
Bates said that’s why, when the Greater Hamilton Chamber of Commerce addressed the issue well over a year-and-a-half ago, its position was to encourage members to get with their legal counsel and make sure that their policies and procedures “protect the culture of which they have tried to create within their organization,” but at the same time make sure that they were covered from a legal standpoint.
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