The Fayette County Chamber of Commerce hosted a seminar Tuesday morning to discuss Ohio’s new medical marijuana program and the possible implications for employers.

Columbus attorney Frank D. Hatfield, a partner with Fishel Hass Kim Albrecht Downey LLP, led a discussion on maintaining the status quo with a zero-tolerance drug policy at the chamber office on East Court Street in Washington C.H. A small crowd attended the round-table seminar, “Drug Testing & Drug Free Workplace Policies in a New Era.”

Hatfield, who has represented employers in employment-related lawsuits involving workers’ compensation, unemployment, and civil rights, suggests to his clients that they update and maintain their employment policies and manuals by writing zero tolerance clauses into company policies to prohibit employees from using medical marijuana.

The main reason is legality, said Hatfield, because although medical marijuana is now legal at the state level, for the status quo it is not legal at the federal level.

“Just put in there language, a sentence, that says the use of medical marijuana in accordance with state law is a violation of policy,” said Hatfield.

Public v. private employers

Public employers cannot do random drug testing or pre-employment drug screens unless it’s subject to a safety issue, said Hatfield, but private employers can enforce a drug-free workforce policy that includes both.

Hatfield said a drug-free workforce policy decreases accidents, decreases workers’ comp claims, lessens loss of work production, and increases employee morale.

Pre-employment screening interviews

“If you want to ask them about illicit drugs, that’s not illegal,” said Hatfield. “If we inquire about their permissible use of medical marijuana, it’s a touchy issue. I wouldn’t ask them about it.”

Hatfield said employers must make sure the questions they ask somebody are related to the job and the requirements of the job — “Can they do the job and can they do it safely?”

“If it’s not related to the job, don’t ask them the question. Don’t ask them about their disability, prescriptions, underlying issues,” said Hatfield.

Disability and discrimination

Hatfield said that because a person uses medical marijuana for a disability does not mean that they are exempt from employment policies prohibiting the use of marijuana.

“There’s no cause of action to go after employers who discharge disabled employees who use medical marijuana and have a positive drug screen. You’re fine with that,” said Hatfield. “Let your employees know nothing has changed.”

Hatfield said employers need to let their employees know that if somewhere down the line an employee has a medical recommendation for medical marijuana, it could result in adverse actions and discharge under company policy.

For example, said Hatfield, if a person has skin cancer and is using medical marijuana for treating their skin, they need to ask themselves, “Do I want to go under that treatment knowing medical marijuana can jeopardize my job?”

Under the Americans with Disabilities Act (ADA), employees are entitled to reasonable accommodations to help with disabilities. Some examples of reasonable accommodations could be wheelchair access, modified equipment, or an alternate work schedule.

“One of the things we don’t have to tolerate is the use of medical marijuana,” said Hatfield, but he said employers have to be careful with the people who do have an underlying disability. “While you can discipline an employee for having medical marijuana, you can’t discipline them for having cancer. If we’re going to discipline them it’s not for the disability.”

Hatfield recommends having a separate ADA reasonable accommodation clause in company policies.

The role of doctors

If employers have an employee exhibiting “impaired” behavior, such as slurred speech, bloodshot eyes, or imbalance, Hatfield warned employers not to play the role of a doctor.

“Don’t try to say they were impaired. Only document objectively what you see — do not come to conclusions if they don’t say they were impaired necessarily — because we don’t know, we only know what we’ve seen. Train your supervisors,” said Hatfield. “You can’t assume they’re impaired.”

“We cannot ask them, what prescriptions are you taking? We cannot do that, it’s illegal. But we can ask employees as a part of policy to reveal that they have a prescription that may interfere with their ability to do their jobs,” said Hatfield.

Hatfield’s first recommendation is for employers to go to their company’s legal counsel to sort out matters. The second recommendation is to have the employee’s doctor say that the employee can perform the functions of their job even though they have a prescription.

“It doesn’t mean that they are unable to do their jobs because they have a medical issue or prescription,” said Hatfield.

As one example, said Hatfield, an employee could disclose to their employer that they take Tramadol (narcotic pain reliever) and cough syrup, but they are working as a heavy equipment operator.

“Have employees take their job description to their doctor and get the opinion from the doctor that they are able to perform the essential functions of their job. Let the doctor decide, don’t try to play doctor,” said Hatfield.

Hatfield said to make sure that the job descriptions are up to date and accurate so that the doctor can provide an accurate analysis.

“If it’s heavy lifting equipment, explain all of the requirements so that when a doctor looks at it they know what a person does,” said Hatfield.

A policy for medical marijuana

A person attending the seminar asked, “Do you know any employers who have allowed medical marijuana, who has written it into their policy?”

“I can’t think of any off the top of my head,” said Hatfield. “The reason I recommend against it is mostly legal because it’s flat out illegal at the federal level. Even if we have a permissible policy, workers’ compensation can still be denied, disability can still be denied. If we permit it…and someone is on medical marijuana and drives a forklift and injures someone else, they’re going to sue everybody and their brother.”

Prescription drug abuse

Another person asked, “What if the doctor’s recommendation says the employee is OK with the prescription, and then the employee did something, they hurt somebody or themselves, does that fall back on the doctor, or who does that fall back on?”

“Everyone is jointly and severely liable. In this case it would be the doctor and the employer,” said Hatfield. “If it’s a prescription, if it’s oxycodone, and the doctor says they had a prescription and were taking it appropriately and weren’t impaired, the doctor can’t be liable. When the doctor writes you a prescription for oxycodone and recommends how much you take, if you take twice as much, the doctor wouldn’t be liable because the employee was abusing the prescription.”

However, Hatfield said employers can’t presume without evidence that someone is taking twice the amount and abusing their medications.

Resource connections

An insurance company’s risk management division and a company’s human resources department can help employers to sort out questions and concerns about medical marijuana and the workforce. For more information on the resources available to employers, contact the Fayette County Chamber of Commerce at 740-335-0761.