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Drug-Free Employers Should Review Policy Before Prohibiting Medical Marijuana

Ohio is soon to be the latest state to be added to the list of states that permit medical marijuana to be legalized. However, as is to be expected, businesses have come together to lobby for an exception to these medical marijuana rules as they pertain to businesses that promote a drug-free workplace. These businesses want to be allowed the capability to pursue adverse action against those employees (current and soon-to-be) who use marijuana for medical reasons.

In response, it has been established that those employers who want to prohibit their staff from using medical marijuana, either on or off the clock, or those employers who want to deny employment opportunities for candidates who come up positive for medical marijuana in a pre-employment drug test, must either establish a drug-free policy if they don’t already have one in effect or, if they do, then they must revise their current policies to include their stance on marijuana use, being sure to mention medical marijuana specifically in said policy.

Further, employers who take advantage of the state fund to provide workers’ compensation insurance can actually enjoy lower premiums by establishing drug-free workplace programs that test their current and potentially future employees for marijuana, as well as other drugs like cocaine, methamphetamines, PCP, and opiates.

In light of the fact that medical marijuana will soon be legalized in Ohio, some important points have been brought to the forefront to both inform and remind employers of their rights with regard to establishing and upholding drug-free workplace policies:

● While medical marijuana may be increasingly accepted into law, it is important to remember that employers are not required to accommodate their staff’s usage, possession, or distribution of the drug. Employers still maintain the right to hire, fire, discipline, or take any other adverse action that they see fit against current and future employees who use, possess, or distribute medical marijuana.

● Current and future employees are not justified in suing employers for any adverse action that is taken against them in response to their usage of medical marijuana, and employees who are terminated as a result of a positive drug test (especially when applying for or working in a position related to the United States Department of Transportation) or in accordance with a workplace’s drug-free policies will be considered a “for cause” termination and, as a result, will not be entitled to receive unemployment benefits.

● Also, despite the existence of medical marijuana and its legalization, employers are still within their right to both establish and enforce drug testing, both random and pre-employment, and drug-free and zero-tolerance workplace policies.

The new law, H.B. 523, allows for people suffering from the following conditions to be permitted a prescription for medical marijuana:
● Alzheimer’s disease
● ALS (Lou Gehrig’s disease)
● Cancer
● CTE
● Crohn’s disease
● Epilepsy (or another seizure disorder)
● Fibromyalgia
● Glaucoma
● Hepatitis C
● HIV/AIDS
● Inflammatory bowel disease
● MS
● Pain (that which is determined to be “chronic, severe, and intractable”)
● Parkinson’s disease
● PTSD
● Sickle cell anemia
● Spinal cord disease/injury
● Tourette’s syndrome
● Traumatic brain injury
● Ulcerative colitis

While the most common way to take marijuana is to smoke it, medical marijuana is only allowed in certain forms, and a joint is not one of them. Those interested in obtaining a prescription for medical marijuana can only take it in the accepted forms, such as in edibles or via vaporizers.

Do you know what your Drug-free Workplace Policy says about medical marijuana? Talk to one of our policy writing experts and we'll make sure you're in complete compliance and covered from liabilities! (202) 679-6670