Pubdate: Wed, 03 Jun 2015
Source: Plain Dealer, The (Cleveland, OH)
Copyright: 2015 The Plain Dealer
Contact: http://www.cleveland.com/plaindealer/letter-to-editor/
Website: http://www.cleveland.com/plaindealer/
Details: http://www.mapinc.org/media/342
Note: priority given to local letter writers
Author: Robert Higgs

OHIO MARIJUANA LEGALIZATION ISSUE'S POTENTIAL TO REACH INTO WORKPLACE 
STIRS BUSINESS CONCERNS

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.
- ---
MAP posted-by: Jay Bergstrom