Even if Ohioans vote to legalize marijuana in November by supporting an amendment to the state constitution, employers worried about a surge in drug use would still have the right to establish and enforce substance abuse policies, experts say.
Still, it would be wise for employers to clearly communicate that their substance abuse and testing policies have not changed to avoid the confusion — and litigation — that might follow the state’s radical departure from federal law, which still makes marijuana illegal, said Jason Matthews, a Dayton-based attorney who specializes in employment law.
While legalization would not negate employers’ zero-tolerance policies and disciplinary rights, it could confuse employees and cloud their understanding of their rights, Matthews said.
“Employers must clearly communicate that they can restrict their employees from doing things that are legal and illegal,” he said. “Some employers prohibit employees from using any form of tobacco, even though tobacco is legal, but the employer can have a zero-tolerance policy for tobacco and legally terminate somebody if they violate that policy.”
A “trickier” issue for employers, Matthews said, would be complying with the amendment’s proposal to legalize marijuana for both both recreational and medicinal purposes, which will be presented to voters on Nov. 3 as a result of ResponsibleOhio’s successful effort to collect enough signatures to qualify for the general-election ballot.
Recommended for you
Recommended for you
Recommended for you
“If they’re using it (marijuana) for some medical reason or have a prescription for it, then I think that would be the exception, and I don’t think the employer could legally terminate the employee,” he said.
But the issue is much more complex than that, according to Chris Kershner, vice president of public policy and economic development for the Dayton Area Chamber of Commerce, which earlier this week launched the Dayton Regional Employers Against Marijuana (DREAM) campaign to oppose the legalization of marijuana.
“The amendment would mean employers would be constitutionally obligated to allow employees to use medical marijuana at the workplace, even if they have a drug-free workplace policy,” Kershner said. “They’d be faced with a choice: the employer can either say no I’m not going to allow you to do that and be in violation of the constitution, or the employer can say I am going to allow you to do that and be in compliance, but now I have an impaired person on the job. Either way, they’re set up for some serious legal challenges, and that’s what has employers really scared.”
Even without the medical exemption, Kershner said, legalizing marijuana would make it more difficult for employers to enforce drug policies because current marijuana testing doesn’t necessarily indicate impairment or intoxication, just the presence of the drug’s active ingredient, THC, in the bloodstream. That could open the floodgates for wrongful termination lawsuits by employees who test positive on a workplace drug test but who say they ingested marijuana on their own time, he said.
For trucking, transportation and other companies governed by federal regulations that mandate a zero tolerance for marijuana use, enforcement will be much simpler, Matthews said.
“Just because it’s legal in the state, federal regulations will still come into play and affect employees’ rights,” Matthews said. “The Department of Transportation even restricts drivers from taking some common over-the-counter medications. So a lot of it is going to depend on the occupation.”
Regardless of the restrictions in place, many employers are concerned that legalizing marijuana will simply make the drug more readily available and increase safety concerns and liabilities for most companies, said Ashley Von Derau, president of the Dayton-based RUSH Expediting trucking firm.
“It’s the ease of access that they’re going to have,” Von Derau said. “It’s not that we don’t already have a zero-tolerance policy, but it’s already a problem in our workplace today. And what’s the problem going to be if something like this were to pass? It’s going to increase (marijuana use) exponentially, and that’s extremely frightening to us.”
Jim Zahora, president of Dayton-based Noble Tool Corp. and member of the board of trustees at Dayton Region Manufacturers Association, said legalizing marijuana would also increase employers’ costs.
“From a workplace situation, it’s definitely going to cause some problems,” Zahora said. “We’re worried about the increased cost for our members. We’re worried about increased testing, low productivity, it’s going to add cost in an already competitive landscape in manufacturing.”
Kevin Burch, president of Dayton-based Jet Express, said he fears the proliferation of marijuana use if it became legal would make it even more difficult to hire and retain qualified workers.
“We already have a shortage of workers in so many of our industries,” Burch said. Legalizing marijuana “will just elevate the number of people who can’t be hired.”
ResponsibleOhio Executive Director Ian James said last week he believes the business leaders need to think about impact passage would have on the economy.
“We’re disappointed but not surprised, that some in the business community have been so quick to dismiss a proposal that could bring a multi-billion dollar industry and over 10,000 jobs to our state,” ResponsibleOhio Executive Director Ian James said in a statement.
If the amendment passes, Ohio would become the fifth state to legalize marijuana, joining Alaska, Colorado, Oregon, and Washington, as well as in the District of Columbia.