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THE REPORT | July/August 2024 | CincyBar.org
(including Ohio) have adopted DUI laws that establish a per se finding of intoxica- tion when a certain level of THC is found in the body, there is no generally accepted scientifically based amount of THC in a person’s system that necessarily equates to intoxication. Part of the challenge in estab- lishing such a limit is the amount of THC metabolite left behind after consumption varies based on several factors, including frequency of use, gender, and weight.
As mentioned, post-Issue 2, an employer can still terminate an employee who tests positive for marijuana. This means that an employee can legally smoke a joint while off-duty and return to work, days later, stone-cold sober. However, because of the half-life of the mari- juana metabolites in a person’s system, the employee may still test positive, even if they are not impaired. As a result, an employee can be terminated following their legal consumption of marijuana even though they did not come to work high. Well, you may say, “So what? They were still smoking pot. If they test posi- tive, they are out of here.” But weed is not just being used by college kids and musi- cians. A large swath of the population is opting to use marijuana, especially now that it is legal.
What About Joyce in Accounting?
While an Ohio employer may enforce a zero-tolerance drug policy that provides no leniency to employees who use weed on their own time, the reality is this may not be the best business option for employers. The fundamental dilemma employers will face as the result of the passage of Issue 2 is that marijuana can now be consumed legally by adults, just like alcohol. An employer may want to give some thought to whether or not it wants to investigate an employee’s off-duty use of pot without a clear business necessity.
Consider an employer that has a zero-tolerance, one-and-done drug policy that includes random drug testing for all employees regardless of the position they hold. It doesn’t matter whether you drive a forklift or mop the floors, if you work here, you are subject to random drug screens and if you test positive you are gone. A program like this is still permissible
STATES WITH LEGAL
RECREATIONAL MARIJUANA
OHIO MINNESOTA DELAWARE RHODE ISLAND MARYLAND MISSOURI CONNECTICUT NEW MEXICO NEW YORK VIRGINIA ARIZONA MONTANA NEW JERSEY
following the passage of Issue 2. However, now that smoking pot is legal for adults, the reality of continuing a program like this could be more complicated.
Imagine the person who tested positive for marijuana is not Johnny Rockstar, who you’ve been unhappy with since a week after he started. Instead, the employee who tested positive is Joyce from Accounting. Joyce does her job well and is a pleasure to deal with. Joyce, who you love and can’t run the business without, has decided to take advantage of the new law and enjoys pot after work and on the weekends, instead of the glass or two of Chardonay she used to drink. Because the policy was drafted before Issue 2 passed, it was meant for a world where smoking weed for fun was illegal. So now the employer with a zero-tolerance policy for marijuana is in a bind, it either has to fire Joyce for violating the drug-free workplace policy or keep her, and open itself up to a lawsuit from Johnny Rockstar who it happily fired the week prior when he tested positive.
So, what is an employer to do? An employer is certainly free to maintain the status quo. But, in the alternative, an employer could look at their existing policy and determine if it still makes sense in the current environment. The advo- cates for the passage of passage of Issue 2 argued that weed should be treated just like alcohol. And this same logic might help employers when evaluating their drug policies. Specifically, most employers don’t probe into the off-duty use of alcohol by their employees unless it spills into the workplace. This is true even for those employees who an employer might suspect of consuming more than their recom- mended daily allowance of alcohol in the evenings or on weekends, as long as they
VERMONT ILLINOIS MICHIGAN CALIFORNIA MAINE MASSACHUSETTS NEVADA DISTRICT OF COLUMBIA ALASKA OREGON COLORADO WASHINGTON
Source: USA Today, April 19, 2024
are showing up on time, sober, and are getting their work done. Proponents of Issue 2 would argue that weed should be treated the same.
If Joyce is a good employee and simply likes to partake in a perfectly legal activity in the state of Ohio, Joyce’s employer may want to think through why they are opening themselves up to the risk and complications associated with subjecting everyone to random drug tests and firing everyone that tests positive for marijuana.
Now, for those employees driving fork- lifts or working in other safety sensitive roles, or who are subject to DOT or other federal rules, the analysis is different, and a business could more easily justify the continuation of its zero-tolerance policy for those positions. The point for Ohio employers is that they should evaluate their existing policies considering the new legal landscape when it comes to the use of marijuana. Post-Issue 2 drug policies should take into account that, in Ohio, grown folks can (and will) now legally consume weed on their own time.
As with all important employment decisions, employers should work with their counsel of choice to help guide them through evaluating existing policies and potentially adopting new ones. Employers should ensure their workplace rules make sense for their business in the new reality ushered in by Issue 2.
Kuntz is an associate with Frost Brown Todd in its Labor and Employment Practice Group. She earned her J.D. from the Northern Kentucky University Chase College of Law. Moore is a partner with Frost Brown Todd in its Labor and Employment Practice Group. Moore is a frequent lecturer and author on topics related to employment law, and a graduate of the University of Cincinnati College of Law.