PIQUA — Medical marijuana in the workplace was a topic of discussion for professionals in Miami County on Thursday morning as members of local chambers of commerce gathered at the Fort Piqua Plaza to learn how the implementation of Ohio’s new medical marijuana program might affect their businesses.
“Marijuana is a hot topic,” said Bryan Niemeyer, an attorney with Faulkner, Garmhausen, Keister & Shenk.
While Ohio’s medical marijuana program is set to begin on Sept. 8, the rollout of the program is expected to be slow due to a low number of licensed physicians, cultivators, and dispensaries. Jamie Bierman, senior human resources advisor with HR Elements, said that 185 physicians in Ohio have applied for certification to recommend medical marijuana and also that there are currently 56 dispensaries, 14 level I cultivators, and 17 level II cultivators in Ohio.
Medical marijuana recommendations are approved for 21 specific medical conditions. Medical marijuana is also approved for use through oils, edibles, patches, and a vapor form.
“It’s still illegal to smoke marijuana,” Niemeyer said.
Niemeyer discussed the legal aspects of how medical marijuana may affect businesses, going over a number of protections that businesses have in order to keep running their businesses as usual.
“You still have the right to prohibit use of marijuana,” Niemeyer said. Businesses are not required to accommodate employees’ use of medical marijuana and can refuse to hire users of medical marijuana, implement random drug testing, refuse to promote an employee for use of medical marijuana, and more. An employee under the influence of medical marijuana may also be precluded from obtaining workers’ compensation or ineligible for unemployment benefits.
In order for those protections to be effective, though, Niemeyer emphasized for businesses to update their policies on drug usage to include medical marijuana, making a decision on whether or not they want to allow employees to use it.
“What is important … is that you amend your policy,” Niemeyer said. If a business that considers medical marijuana to be a controlled substance wants to prohibit its use, Niemeyer said, “I would make that very clear.”
With marijuana still considered an illegal drug on the federal level, employers also do not need to accommodate an employee’s use of medical marijuana under the ADA.
If an employee works in a safety-sensitive position, Niemeyer said that there may be an obligation on the employer’s part to inquire about the employee’s possible use of drugs or medical marijuana. In regard to the Occupational Safety and Health Administration (OSHA), impairment caused by medical marijuana could be considered a hazard and a possible violation of OSHA safety standards.
Truck drivers also still have to comply with Department of Transportation regulations, Niemeyer said.
Niemeyer said that it was ultimately up to business owners to decide whether or not they want to allow use of medical marijuana, but he encouraged business owners to make that decision and update their policies appropriately.
Bierman followed Niemeyer’s legal considerations with other potential impacts.
Bierman suggested that businesses should find out if medical marijuana would impact any drug-free workplace requirements, professional licensure and credential requirements, or government contracts. Businesses should also take into consideration whether they have employees who cross state lines.
Bierman also suggested that if an employee uses medical marijuana, employers should make sure that medical marijuana card is legitimate and when the employee is using medical marijuana to make sure they are still safe to work their current schedule.
Bierman went over action steps that businesses should take in regard to medical marijuana, including making policy decisions, researching and refining business operations, communicating their policies, and supporting their decisions.
Bierman also reviewed reasonable suspicion procedure if an employer wants an employee to undergo a reasonable suspicion drug test. She discussed how the suspicious behavior needs to be witnessed by two or more supervisors and that those behaviors and later discussions with the employee in question should be documented. Bierman also recommended documenting witness statements.
Bierman also said that if an employee is being reviewed under this reasonable suspicion of drug use, the employer should not let that employee leave the workplace premise or the drug testing site on his or her own accord.
“You should not let them transport themselves home,” Bierman said. She suggested calling a taxi or an Uber for that employee.
The seminar was sponsored by the Miami County Safety Council, Piqua Area Chamber of Commerce, Tipp City Chamber of Commerce, and Troy Area Chamber of Commerce.
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