Thursday, January 9th, 2020 is the day medical marijuana officially arrived in Cincinnati. Have a Heart Cincy is the name of the brand new medical marijuana dispensary located on Vine Street in Hartwell. You need a prescription from a licensed physician based upon a limited number of symptoms, but it is here. There is even rumor that long suffering Browns and Bengals fans are vying to have their fandom treated as an illness worthy of a prescription, as seen here. In other words, the products are going to become easier to obtain as time goes on. You can count on it.
And setting aside all of the comparisons between medical marijuana and the manner in which personal use levels marijuana possession have been dealt with locally in the past, the fact is that we will now experience fully legal marijuana. It will make it to the workplace. The legal marijuana that makes it into the workplace is also somewhat sneaky, because unlike stereotypical “weed”, legal marijuana in Ohio may not be the smokeable, leafy variety.
No great puffs of smoke, no odor, nada. These products will come in a cookie or other edible form. If you can smell it, the marijuana is the illegal variety. There is also no way to tell with scientific certainty whether an employee is high “right now.” Of course, common sense will lead you to evaluate an employee’s behavior much like you use your common sense impressions to determine whether someone is intoxicated with alcohol. The problem is that with marijuana, you can’t back up your impression with a breathalyzer type test. Therefore, adverse employment decisions based on perceived marijuana use, especially legal use, seem to be risky, right? Not really.
Drug testing will give employers information on levels of THC in the employee’s system. A baseline level can be established, and incidence of use deduced from the comparison of levels over a period of time. This is similar to the process a federal probation officer uses to determine compliance with “no drug use” provisions of a bond or supervised release. There are a variety of strategies an employer might adopt.
Employers in Ohio are entitled to a drug free workplace and the enforcement of a zero-tolerance policy. Employees, even those with valid legal prescriptions for marijuana, have no right to use marijuana and consider their employment secure. In Ohio, the enabling legislation, House Bill 523, explicitly denies any employee’s right to use marijuana against an employer’s policy. There are no avenues for redress if an employee feels discriminated against for using marijuana. States differ, and there will be challenges, but this is the law in Ohio for now.
The landscape is changing quickly, however. Michigan and Illinois recently fully legalized recreational marijuana. Other states are changing. Several proposed bills in Congress may impact marijuana nationwide. We keep up with the national landscape for you.
What to do if valued employees obtain a legal marijuana card and tell you about it? Those are company-by-company questions we can help you work through. Policy is king, and these issues will hit virtually every workplace in the next few years.
What is the difference between marijuana and hemp? There is a world of difference, and we can help you understand the terms, the science, and the law.
What if your employees work in Kentucky and Indiana or elsewhere? These are thorny questions that will cause headaches initially, but can be worked through carefully. Graydon’s team is ready to assist.