Legal weed complicates already complicated landscape for employers

Dec. 7—For employers who want to maintain safe workplaces, especially in manufacturing and construction, the passage of Issue 2 and the sweeping legalization of recreational marijuana use complicates an already challenging landscape.

John Morris, executive director of the Homebuilders Association of Dayton, said the one thing employers cannot compromise is safety.

"An employer can still have a zero-tolerance policy for drug use," Morris said. "They're not required to accommodate an employee's use of marijuana. They can still have drug-testing policies. They can still have zero tolerance."

In brief, Issue 2′s passage made the possession and use of marijuana legal for people 21 and older in Ohio. But employers and landlords can still prohibit its use as a term of employment or in a lease agreement.

Either banning off-the-clock use or allowing it can come at a price, employers and trade groups tell this news organization. Limiting it could reduce job applicants in a tight labor market. But allowing pot use can impact insurance costs and create challenges in making sure employees aren't high at work.

"The major impact that this may have — and we'll see if it is major — will revolve around the ability to hire and retain employees," Morris said in a recent interview.

Good employees are already hard to find for construction contractors. Issue 2 may create another challenge, lowering the number of candidates able or willing to pass drug tests, forcing a reconsideration of disciplinary action for the first discovered use of a now-legal drug.

"I think it's a headache that's been around a long time," Morris said of the challenge contractors (and other employers) face in finding good people.

"Most employers will tell you the hardest thing is: You get somebody who's willing and eager to work," he said. "They come in. They have the aspiration to work in our industry — and then they fail the drug test."

Perhaps that candidate is never seen again. Perhaps they're not willing to change their habits or behavior.

"This will not help that," Morris said.

'It's going to have an impact'

Robert Robenalt, a partner with the Columbus law firm of FisherPhillips, said his manufacturing clients regard the passage of Issue 2 as a significant matter. But it doesn't change their rights when it comes to dealing with impaired workers.

Some studies point to an increase in the number of accidents after local legalization of marijuana use, Robenalt said.

"I do think it's going to have an impact and be a problem for employers," he said.

"Ohio employers should prepare for an influx of workplace accidents and injuries that will come with more employees using cannabis," FisherPhillips said in a statement. "Quest Diagnostics found the number of marijuana-positive drug tests performed after workplace accidents soared 204% from 2012 to 2022 — coinciding with the trend of more states legalizing recreational use of marijuana."

In Ohio, firms like FisherPhillips are working to assemble best practices for employers grappling with the situation. Robenalt said his advice to employers is to make policies clear to employees.

The Dayton Area Chamber of Commerce has created a task force that is preparing employment, operations and legal resources to be available for its member businesses, Chris Kershner, the chamber's chief executive and president, said in a recent Dayton Daily News column.

"It is essential that as a business community we continue our diligence and ensure that the protections for the business community and employers remain strong and safety for employees and customers remains paramount," Kershner wrote in that column.

Sometimes employers will remove marijuana from a pre-employment drug testing regimen, Robenalt said. But employers who have obligations under federal rules will require drug testing protocols that include marijuana detection, he noted.

Business leaders should proceed carefully. A spokeswoman for the Ohio Bureau of Workers' Compensation (BWC) confirmed that if marijuana is removed from a company's testing regimen, that can imperil a premium discount some employers receive.

"The current program requirements do require testing for marijuana," said Kim Norris, a spokeswoman for the Ohio BWC. "Nothing has changed in relation to Issue 2. Alcohol is also a requirement. It's ultimately an employer's decision."

She added that to date neither the Ohio Manufacturers Association nor any other group has asked BWC to drop the requirement to have marijuana testing continued to secure the discount.

Testing a challenge

One challenge for employers is testing. Marijuana can remain in the body at detectable quantities for days after the high wears off.

This was a concerned raised by state Sen. Louis Blessing, R-Colerain Twp., in floor testimony as the Senate voted on revisions to the law on Wednesday.

"Responsibly partake of a soon-to-be-legal product on Friday, walk into work on Monday, fail a drug test and no soup for you. This is really a de facto prohibition," Blessing said. "I understand at-will employment but it would go a long way if we rectified something like that."

Doug Barry, owner of the staffing company BarryStaff, said some of his clients are sticking with drug-free workplaces, some are ceasing to test for marijuana and some are treating it like alcohol.

"You can't do it and come to work just like you can't drink and come to work. We don't want you coming in here smelling like alcohol, and we don't want you coming in here smelling like marijuana," he said.

But again, the difficulty is how to test whether the employee is actually impaired on the job.

"They need to figure this out because we've got to be able to protect a worker that smoked recreationally but didn't do it right before work, they did it last night. But if they're tested today they will test positive," he said.

"How can we protect employers and how can we protect employees?"

A 'major concern'

Employers already deal with employees who may drink alcohol or use prescription drugs. Pathways to counseling and rehabilitation are common benefits from larger employers. And of course, marijuana use is not new, culturally.

"Unfortunately, I don't really have any good answers to give you," said Steve Staub, of Vandalia's Staub Manufacturing Solutions.

It's a "major concern for the entire manufacturing industry," he said.

"With the amount of equipment and fork trucks In a manufacturing facility, all team members need to be aware of their surroundings at all times," he said. "The use of marijuana could certainly make a difference in their reflexes and judgment."

Marijuana possession remains a federal crime, regardless of state laws or changes to state laws. Staub said his business will continue to prohibit the use of the drug. His company will also continue to test for evidence of drug use in random screenings.

Morris said he advises companies to update drug-use policies while continuing to emphasize safety. Reevaluate drug-testing procedures, he recommends. Employers can make a distinction between a lone instance of recreational use and habitual use of a drug.

But he added: "We're not going to adapt to anything that doesn't create a safe workplace."

Examine existing policies

Jim Bowman, president and CEO of Noble Tool, said he is "concerned in general."

"Safety for sure is absolutely top of mind," he said.

Noble Tool's policy is simple: if an employee is suspected to be under the influence of drugs or alcohol, or acting in an unsafe manner, he or she may be disciplined.

"We don't have random drug testing," Bowman said. "But if people are acting as if they're under the influence — if they can potentially cause harm to themselves or other co-workers — we can send them to get drug-tested. If they show positive, then there will be disciplinary action."

If someone is involved in an accident, the company can have them tested.

"We've been in constant communication with our employees in terms of all of our safety policies," said Bowman, who has fewer than 25 workers. "We tell our employees, yes, 'Alcohol is legal, but you cannot come to work under the influence.'"

The expectation is that even if employees are using legal medications, such as over-the-counter cough medications or cough syrup, they need to be able to do the job correctly and safely, Bowman said.

He agreed that a good first step is hiring people the company trusts, people with the right maturity and mindset.

"They know where the baseline is," Bowman said. "I'm not overly concerned that there will be a dramatic shift in our current workforce."

Jamie Karl, a spokesman for the Ohio Manufacturing Association, said association members are being advised to examine existing policies. Consider well how to define "under the influence" and grounds for testing, he advised. Employers also need to consider what their safety-sensitive job positions are.

"There are different ways to handle this," Karl said.