COLUMBUS, Ohio -- Language in a proposal to amend Ohio's constitution and legalize sale, use and possession of marijuana in the state has employers antsy over the impact it could have, despite a legal analysis that says they will retain strong workplace control.
~
The amendment's backers said they sought to protect employers, writing in language stating businesses should not have to accommodate use of marijuana products in the workplace. But a provision that appears to provide an exception for patients certified to use medical marijuana has stirred questions that one legal expert suggests might not be cleared up without court rulings.
"I would expect the chamber of commerce would not be comfortable with the uncertainty," said L. Camille Hebert, a professor at Ohio State University's Moritz College of Law and an expert on employment law. "That prescription language could be somewhat troublesome."
At this point, marijuana remains illegal in Ohio for any use and no constitutional amendments that would change that have qualified for the ballot.
But there is growing expectation that an issue backed by ResponsibleOhio will land before voters in November. The petitioners have already collected well over the 305,000 or so they will need to get on the ballot. The group intends to keep collecting through June to ensure it has enough valid signatures from registered voters.
That expectation has businesses looking for answers, said Marty McGann, a senior vice president for government advocacy at the Greater Cleveland Partnership, a metropolitan chamber of commerce with more than 10,000 members.
"From what I've heard, both sides agree that you can still have a drug-free workplace," McGann said. But the language regarding prescription use is less clear, he said.
That language is in the same section that says the amendment is not intended to require an employer to accommodate use in the workplace or restrict an employer from barring use by employees. "A patient with a medical marijuana certification may self-administer the medical marijuana subject to the same conditions applied to administration of prescribed medications," it states.
In the view of ResponsibleOhio, employers will still have control, said spokeswoman Lydia Bolander.
Bolander likens it to use of alcohol, which is legal for adults age 21 and older but often barred from workplaces, or to policies that bar hiring of people who smoke.
A legal analysis prepared for ResponsibleOhio by Dickinson Wright, a Detroit-based, business law firm with offices in Columbus, suggests companies will be able to regulate medical marijuana in the workplace just as they regulate or prohibit use of other prescriptions.
But Hebert suggests a lot will depend on how a company writes its policies.
"Basically, if they say they're going to treat it like a prescription, then the question would be what limitations are there for the workplace," Hebert said.
Employers, for example, might limit use of medications that could cause dizziness or impair judgment. That might also be applied to some aspects of marijuana.
But there are medical marijuana products that do not produce that effect -- medications that use cannabidiol, or CBD, a non-psychoactive ingredient in cannabis. Tetrahydrocannabinol, or THC, is the compound that produces a high.
And trying to bar employees from using prescription drugs also could be problematic, she said. A company would not, for example, bar an employee from taking insulin.
Well over 20 states allow some form of medical marijuana, and court rulings have tended to side with employers when employees have lost their jobs for violating company drug policies, said Sharona Hoffman, a law professor at Case Western Reserve University and co-director of the Law-Medicine Center.
Since marijuana remains illegal under federal law, efforts to invoke anti-discrimination laws like the Americans With Disabilities Act have been unsuccessful. And in many states, the laws that allow usage for medical purposes are written as protections from state action but do not apply to employment scenarios.
"What the state statutes mostly do is say you cannot be criminally prosecuted for using medical marijuana," Hoffman said. Few states have protections that apply to the workplace, she said.
"You need civil law protection," Hoffman said. "You need employment protection."
The analysis by Dickinson Wright for ResponsibleOhio cites cases that back up that notion. It notes, though, that "to date every court addressing the issue has utilized federal law to deny employees protection for the use of marijuana in the employment context."
Pending now, though, in the Colorado Supreme Court is a case that questions whether an employer can fire a worker for legal use of medical marijuana when Colorado's statutes make marijuana use a "lawful" activity. The plaintiff in the case, a quadriplegic who smoked medical marijuana legally while away from work, argues the state's statute allowing his medical marijuana use should protect him from termination.
The Greater Cleveland Partnership likely will take a position on the issue to help guide members, McGann said.
"We're working toward some position on it, but I think we really need to spend some time on what the impact on the workplace will be," he said. Particularly with regard to prescription use, he said.
"It's a challenging issue for us to sort out. It's not as simple as just here's how you do it," McGann said. "I think that every HR director that is looking at it is coming to different conclusions."
Ultimately the answers could ride on how far the reach is for the exception provided for prescription use, said Hebert, the OSU professor.
That answer might not be available until a court case comes along. That would first require that voters approve the amendment changing state law and a fired employee sue for reinstatement, she said.
As she notes, courts don't offer advisory opinions.
