With the November 7 passage of Issue 2, effective December 7, 2023, Ohioans will be able to purchase and possess up to 2.5 ounces of cannabis and grow marijuana plants in their home. Ohio is the 24th state to allow recreational marijuana.
When Ohio allowed medical marijuana back in 2016, Ohio employers had to learn how to address a number of issues regarding medical marijuana in the workplace. The most difficult proved to be (1) understanding the concept of marijuana as a protected treatment for specific disabilities, (2) keeping employee information relating to having a marijuana card certified by a licensed physician confidential under the confidentiality protections of the Americans with Disabilities Act ("ADA") and comparable state law, and (3) updating performance and drug testing policies to straddle the fine line between allowed medical treatment and being under the influence at work.
With the enactment of Issue 2, Ohio employers have a new set of legal issues to navigate, including addressing and properly responding to the number of increased workplace injuries that historically flow in newly-anointed recreational cannabis states.
As with the medical marijuana law, Issue 2 contained language that allows employers to enact policies and take disciplinary action for marijuana use that impacts the workplace. This means that an employer can have a policy that prohibits the use, possession, or distribution of marijuana in the workplace. Employers can also prohibit employees from being under the influence of cannabis at work. In fact, and in line with the Ohio Bureau of Workers' Compensation Drug-Free Workplace program (the "Program"), which allows employers who comply with the terms of the Program to reduce their workers' compensation insurance premiums, Ohio employers are free to enforce drug-free/zero-tolerance workplace policies.
As many employers have come to find out, however, especially those in the restaurant, hospitality, and construction industries, drawing a hard line and prohibiting marijuana use can be extremely prohibitive when hiring, leaving many employers to bite the bullet and loosen their drug testing and zero-tolerance policies in order to ensure proper staffing levels. For employers seeking or needing to do the same, here are some steps to get you started:
- Review and Update Your Drug Testing Policy
Employers should review and update their drug testing, including when they will trigger drug testing. But first, it is essential to understand the triggers and testing mechanics involved to properly structure a drug testing policy that fits the needs of the specific workplace for which it will be applicable.
Fundamentally, there are five times in the employment relationship when employers typically seek a drug test under a drug testing policy: (1) pre-employment, (2) reasonable suspicion, (3) random, (4) post-accident; and (5) for specific occupations or positions, e.g., safety-sensitive positions or as otherwise mandated by industry, e.g., regulated by the Department of Transportation.
Testing is usually via a panel, meaning a single test checks for numerous controlled substances and varies based on industry and job needs. According to Mobile Heath, a customizable drug testing company, typical panels include:
- 6-panel drug test: Typically tests for Amphetamines/Methamphetamines, Barbiturates, Cocaine Metabolites, Marijuana Metabolites: Tetrahydrocannabinol (THC), Opiates (including Hydrocodone, Hydromorphone, Codeine, and Morphine) and Phencyclidine (PCP).
- 7-panel drug test: This test is often administered by companies concerned an employee may be abusing prescription drugs. Industries requiring alertness or the operation of heavy machinery, such as transportation and manufacturing, may use the 7-panel test to gauge the presence of prescription drugs as these drugs, while legal, may impair a machine operator's ability to do their job or cause fatiguing side effects, particularly if abused. This test typically tests for marijuana, cocaine, opiates, PCP, amphetamines, benzodiazepines, and barbiturates.
- 10-panel test: This test typically tests for cocaine, marijuana, PCP, amphetamines, opiates, benzodiazepines, barbiturates, methadone, propoxyphene, and Quaaludes and is common in law enforcement and occupational medicine to determine if an individual is violating the terms of probation. Many civil servants must pass a 10-panel test, mainly if their job entails dangerous work or the employee must ensure the safety of others.
- 12-panel test: This test is often administered
as an extension to the 10-panel test. It tests for either the
presence of extended opiates and prescription painkillers or traces
of other controlled substances if they pose a dangerous threat to
the workplace. This test typically looks for cocaine, marijuana,
PCP, amphetamines, opiates, benzodiazepines, barbiturates,
methadone, propoxyphene, Quaaludes, Ecstasy/MDA, &
Testing is usually done in one of five ways, and going least to most invasive: (1) hair; (2) saliva; (3) sweat; (4) urine; and (5) blood.
Drug testing is not a specific science. Each testing method can only test for the presence of marijuana, or rather THC and its metabolites, i.e., 11-Nor-9-caroxy-THC "THC-COOH," for a limited period. For example, the following represents the detection windows, going from longest to shortest, and it may surprise you:
- Hair: This is the most sensitive test and can detect cannabis for up to 90 days after use.
- Urine: Can detect cannabis for 1-30 days after use
- Sweat: Can detect cannabis for 7-14 days.
- Saliva: Can only detect cannabis for up to 24 hours, though some saliva tests may detect cannabis from edibles for up to 44 hours.
- Blood: Can detect THC for only a few hours.
Detection also depends on several factors, such as how often the user consumes the substance, how much fat the person has, gender, hydration, exercise, metabolism, and the specific THC levels in the particular cannabis product consumed, among others.
Based on the detection capabilities of each testing mechanism, you can start to identify what type of test might be more appropriate than another. For example, in a zero-tolerance workplace, a hair or urine test that can test consumption going back a more extended period may be wise; a saliva or blood test may be more appropriate in a post-accident test. This is especially true in states that preclude workers' compensation benefits for employees involved in workplace accidents while under the influence. As you can imagine, a urine test that can detect urine for up to 30 days will not be beneficial in determining if an employee was under the influence of cannabis at the time of a workplace accident.
Applying this logic and given that almost half of the United States now allow for recreational marijuana use, not to mention the various patchwork of state laws that limit or outright forbid pre-employment drug testing, many employers have abandoned pre-employment drug tests for applicants or have removed THC from pre-employment drug testing panels.
Other options include:
- Not drug testing;
- Removing marijuana from all testing panels;
- Removing marijuana from pre-employment testing panels but continuing to test for it in other tests;
- Testing for all drugs, but only specific occupations or positions, g., safety-sensitive positions.
- Testing for all drugs.
- Identify a Drug Testing Vendor That Meets Your Employment Needs
As set forth above, even in most states where off-duty recreational cannabis use is protected, employers can still legally prohibit workers from being under the influence while on the job. The issue, however, is defining what "under the influence" means and how it is determined. Many employers use drug tests to screen for cannabis without a good grasp on the type of test they are using and what the results mean. This is why it is critical to understand what your drug test is testing for and how you can use that information.
The reality is that most drug tests are reported as positive or negative for the substances. In contrast, alcohol testing identifies a specific blood alcohol level, such as .08, which allows the employer to identify how much alcohol is present in the employee's bloodstream. With a positive/negative test, it is impossible to determine if the employee was under the influence of the drug at the time of an incident, meaning results may factor into whether workers' compensation should cover a workplace injury, but it is not dispositive.
Some states have laws that identify specific levels of THC that are considered "under the influence," such as Colorado's, which creates a permissible inference that someone who is under the influence of THC is found in someone's blood in quantities of 5ng/ml or higher.
Testing for levels of nanograms per milliliter can provide an employer more of a sense of an employee's actual level of impairment, which would be incredibly beneficial in a post-accident test where workers' compensation will likely become an issue.
As such, employers need to work with their drug test provider to discuss what type of testing is appropriate and what type of results will be the most helpful to the employer.
However, until there is a widely accepted and proven test to detect real-time cannabis intoxication levels, establishing whether an employee is "under the influence" during work hours or while on company properly will continue to be a challenging issue for employers.
- Update Related Policies
After updating the company's drug testing policy, go through the rest of the Employee Handbook and update related procedures, such as the workers' compensation policy. The policies should expressly note that the possession, use, or distribution of cannabis on work premises is prohibited and that employees will be disciplined for violations.
- Last Chance Policies and Employee Assistance Programs
Employers should also determine if they want to add cannabis to their employee assistance program (EAP), which is used more typically for alcohol addiction, to allow employees to receive treatment for cannabis-related issues.
Additionally, employers should also determine if they want to adopt last-chance programs for employees who test positive for cannabis or come forward with cannabis-related issues. Last-chance policies allow an employee an opportunity to receive assistance for substance abuse issues and make continued employment conditioned upon the employee continuing to be substance-free.
Lastly, employees, especially management, must be trained on these policies to clearly understand what testing options, EAP programs, and last-chance options are available to them as they have to navigate substance-related issues of the employees they supervise on top of everything else they are responsible for.
With everything new, it takes time, patience, and a game plan to ensure legal compliance that works for your workplace and your employees. If you need assistance strategizing your game plan, please contact one of our employment law attorneys.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.