Ask the Attorney – Medical Marijuana
By: Amy Kullik
Q: Since medical marijuana is now legal in Ohio, as an employer, can I enforce our drug-free workplace policy against employees who are impaired at work even though they are lawfully using it?
A: Yes. Even though medical marijuana use is legal in Ohio, marijuana remains an illegal drug under the federal Controlled Substances Act. Employers have an interest in and legal responsibility to maintain a safe working environment, and drug use is considered a threat to the workplace.
Many Ohio employers have enacted a Drug-Free Workplace Program that often provides for pre-employment, post-injury, post-accident, and/or random testing. Workplace drug testing focuses on employee health, wellness, safety, and productivity. Consequently, if an employee tests positive for the presence of marijuana — even if use is legal in Ohio for medical purposes — he or she can still be held accountable for violating this policy.
Think about it like this: Alcohol is legal, but it is still prohibited to be intoxicated at work under a drug-free workplace policy. Marijuana is no different. The short-term effects of marijuana include impaired short-term memory, motor coordination, and judgment. Impairment by any substance — legal or not — is still prohibited by in the workplace.
Ohio’s workers’ compensation law also provides employers with a defense to a work-related injury caused by drug or alcohol impairment. In Ohio, if a worker tests positive for drugs or alcohol following a workplace injury, there is a rebuttable presumption that the impairment caused the injury and as such, eligibility for benefits is compromised unless the worker can demonstrate that he or she would have been injured regardless of the impairment.
In order to protect the workplace, employers should implement drug-free workplace programs and/or zero-tolerance policies to prevent impairment at work. Such policies should clearly state the elements of the drug testing program and identify who is subject to testing, how testing is administered, how positive results are confirmed, and the consequences for positive test results or failing to take a test as required.
Employees should be clearly informed about such policies and trained to understand their obligations and the testing requirements, and employers should obtain a signed acknowledgement of receipt and understanding of the policy.