Medical marijuana is here (sort of). Is your company ready?

Ohio is in for some turbulence as it enters the world of legalized cannabis.  The state’s medical marijuana program was to be fully implemented by September 8, 2018.  While much of the work of licensing growers, producers, dispensaries and physicians has taken place, a number of glitches in the state’s screening processes have caused delays in getting product market-ready by this deadline. 

These delays present employers who have not completed preparation for this change a brief reprieve.  What can employers do now to ensure workplace safety as Ohio’s law is fully implemented?

1. Understand what the new law, O.R.C. 3796 et seq., states.  Employers are not:

   1. Required to permit or accommodate an employee's use, possession, or distribution of medical marijuana;

   2. Prohibited from refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against a person because of that person’s use, possession or distribution of medical marijuana, or

   3. Prohibited from establishing and enforcing substance abuse policies.

2. Understand the law in relation to disabilities laws.  Employers must know and abide by any obligations that may arise under state or federal disabilities laws, when considering the underlying medical condition for which an individual may be using medical marijuana.  The new law identifies 21 qualifying conditions, the most commonplace being “pain that is either chronic and severe or intractable”.

3. Review and update your company’s substance abuse policy.  With medical marijuana now legal, pay close attention to definitions of permissible and impermissible conduct.

4. Review and update your company’s smoking policy.  While the new law prohibits smoking medical marijuana (combustible materials), it expressly permitted vaping it via an e-cigarette type of device.

5. If your company is a party to a collective bargaining agreement, consider your obligation to bargain in good faith over any change to a drug testing policy.

6. Revisit all job descriptions, particularly those for safety-sensitive positions. A well-established side effect of consuming marijuana is its impact on various motor and cognitive skills, including movement, sensation, vision, judgment and coordination.

7. Understand how to screen applicants consistently and in compliance with laws affecting drug screening.  What is your policy on pre-employment screening?  At what stage of the hiring process is this occurring?

8. Know the requirements of customers or business partners that may have your employees on their job sites. What is your policy if your employees pass your hiring requirements but cannot pass those of the site to which they may be assigned?

9. Train management and supervisory staff on how to discern and document possible impairment or working under the influence.  Managers and supervisors are the eyes and ears that can help protect employees and their co-workers from harm.  Providing them with the proper tools to ensure safety procedures are followed when someone is suspected of being under the influence can often save a life or limb, not to mention workers’ compensation claims and costly litigation.

10. Consult with legal counsel if you need assistance with any of the above.