Debbie Strawser, Human Resources Consultant
Over the past decade, there have been significant changes throughout the United States at the local and state levels in the legalization of medical and recreational use of marijuana. Many states have legalized some use of the plant’s psychoactive ingredient, THC, for certain medical conditions. However, marijuana is still illegal at the federal level. Every state’s laws are different, so if your business has locations in multiple states, being compliant with each state’s laws can be challenging.
Currently, Ohio permits individuals to use medical marijuana for 25 medical conditions. To legally use marijuana in Ohio, individuals must have a prescription from a physician legally authorized to prescribe it. Ohio business owners should be aware of three guidelines when it comes to employees and marijuana use:
Employers are permitted to refuse to hire an employee who uses marijuana.
Employers are permitted to have a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.
Employers are permitted to discipline an employee for marijuana use. (However, there is a caveat to this regarding the American with Disabilities Act (ADA), explained below.)
Kentucky Governor Andy Beshear signed an Executive Order effective January 1, 2023, allowing Kentuckians to possess up to eight ounces of medical marijuana at any one time for use for specified medical conditions, provided it is purchased legally in other states. A Kentuckian would need certification from a licensed health care provider to verify a diagnosis for 1 of 21 conditions that qualify.
Below are some considerations when reviewing your company policies and practices regarding marijuana.
Pre-employment Drug Screens
If you conduct pre-employment drug screens, do you want to test for marijuana? If you have employees in multiple states with different laws, you may need to maintain different policies for different states. Following are some general policies to keep in mind:
Pre-drug screen questionnaire: If a candidate tests positive for marijuana or any other drug but doesn’t truthfully answer the questions on the pre-screen questionnaire, they can be terminated for falsification of a document. Keep in mind, a candidate could test positive for marijuana because they used marijuana in a state where they were legally permitted to do so for medical or recreational use. Marijuana remains in a person’s system long after the person has used it (3-30 days). The exact length of time depends on their body weight, how much has been smoked or ingested, and the type of drug test used.
Many employers who historically tested for marijuana have discontinued testing. If you do choose to continue testing for it, you need to consider if you are willing to hire someone that tests positive. If a candidate tests positive, will you require them to provide documentation that they have legally obtained the drug? Note that you must be careful not to ask why the person is taking marijuana. You don’t want to know the medical condition that qualifies them to take marijuana for ADA reasons, as explained below.
During Employment – For Cause Testing
Employers can conduct “for cause” drug testing when an employee exhibits a change in behavior or performance, or exhibits other signs which cause the employer to suspect that the employee is under the influence of drugs or alcohol.
If you suspect that someone is impaired due to the use of marijuana or any other drug, you must maintain detailed documentation of your observations that led to your concerns. Include dated, specific examples of an employee’s behavior, such as slurred speech, glassy or bloodshot eyes, stumbling, and unstable walking. If you aren’t observing these types of behavior changes, but observe changes in performance, you should have written documentation detailing how their job performance has changed or is not meeting expectations. Because these behaviors and performance issues could stem from many different causes, including side effects of prescription medication, it’s critical to begin the process of addressing your concerns with a conversation about what you are observing, and provide the employee an opportunity to respond.
Remember employees can be impaired with legally prescribed prescription medications too, so prohibiting marijuana in your workplace will not prevent you from having impaired employees.
Americans with Disabilities Act (ADA)
All of the medical conditions that qualify for medical marijuana in Ohio and Kentucky are also covered by the Americans with Disabilities Act (ADA), which requires that employers make reasonable accommodations for employees with these disabilities. That means that if you decide to discipline an employee for use of medical marijuana, you need to be very cautious that you do not violate the ADA. Don’t ask why they are taking medical marijuana or what their medical condition is.
As with all policies and practices, the bottom line is this: be consistent in how you treat employees in similar/same circumstances.