Notable new analysis of marijuana reform proposal and Ohio employment law

This new local article, headlined “ResponsibleOhio’s marijuana legalization issue wouldn’t trump employers’ drug policies, legal analysis finds,” reports on an interesting legal memo commissioned by the well-financed group seeking to legalize marijuana in the Buckeye state via voter initiative in 2015. Here are the basics:

An analysis of the marijuana legalization issue that ResponsibleOhio hopes to have on the November ballot found that if approved, it would have little to no impact on an employer’s ability to control employee use of marijuana.

The analysis, commissioned by ResponsibleOhio, found that language in the issue itself retains significant control for the employer. Beyond that, federal case law also provides further protections, the analysis said.

ResponsibleOhio is trying to amend the Ohio Constitution to legalize sale, possession and personal use of marijuana in the state for people at least 21 years old. The group’s proposed amendment to the state constitution would establish a legal marijuana industry in which Ohioans could purchase marijuana and marijuana products from licensed retail outlets for recreational and medical uses. They also would be able to grow marijuana in their homes.

But as the group has collected signatures needed to reach the ballot and sought to raise awareness around the state, it also heard questions from employers who wondered how the amendment would affect their businesses. Would they have to change their companies’ internal drug policies? Would they still be able to bar their employees from using the drug?

Greater Cleveland Partnership has heard some of those same questions, said Marty McGann, senior vice president for government advocacy. GCP, with more than 10,000 members, is one of the largest metropolitan chambers of commerce in the country. “At this point, I think it’s curiosity (from the businesses),” McGann said. “I haven’t heard forceful positions on this. I think it’s more realization that this likely to be on the ballot.”

GCP is preparing an in-house forum with people from all sides of the issue for its members. The organization hasn’t taken a position on the constitutional amendment yet. “We’ve been known to take positions on different issues,” McGann said. “It’s not even on the ballot yet. We’re just sort of beginning the discussions to understand it.”

The questions prompted Responsible Ohio to request an analysis from Dickinson Wright, a Detroit-based firm that specializes in business and financial law that has offices in Columbus. “We wanted to be sure we were being consistent with reality when we said we would not force employers to change their policies,” said Lydia Bolander, a spokeswoman for ResponsibleOhio.

The research looked at the language within the amendment as well as existing case law, said Jonathan Secrest, the lawyer who conducted the analysis. “It is our opinion that the legal precedent is on the side of the employer,” Secrest said in an email. “ResponsibleOhio’s proposal will not compel an employer to loosen their standards on drug testing or consumption in the workplace.”

Marijuana remains an illegal drug under federal law. That has led multiple courts to dismiss employee claims of discrimination and wrongful termination, the analysis found….

Beyond the case law, the analysis found that the amendment itself offers employers some built-in protection. It specifically says “nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display or transportation of medical marijuana, marijuana, homegrown marijuana, marijuana-infused products or marijuana accessories in the workplace or to affect employers’ ability to restrict the use of such products by employees.”

The amendment language provides that employers have no duty to accommodate use of marijuana in the workplace, the analysis said, and treats medical marijuana like any other prescription drug. For that reason, employers likely will want to review their policies to evaluate how they treat employee use of prescription drugs, the analysis said.