Legalizing pot wouldn’t halt job tests

Lawyer: Drug-free workplace policies upheld by every court

Jim Yates, a lawyer with Eastman & Smith Ltd., addresses the Toledo Regional Chamber of Commerce at its monthly luncheon at The Premier in South Toledo.

If an Ohio ballot issue legalizing marijuana for recreational use is passed by voters on Nov. 3, the result definitely will mean workplace changes for employers in the state.

But it won’t prevent employers from testing for the drug and disciplining or firing workers who test positive, an attorney who deals with workplace issues said Wednesday.

Jim Yates, a lawyer with the firm Eastman & Smith Ltd., said that, despite the legalization of marijuana in four states thus far, “drug-free workplace policies have been upheld by every court.”

Mr. Yates, the keynote speaker Wednesday at a business luncheon presented by the Toledo Regional Chamber of Commerce, said the key to how the situation might unfold in Ohio, should the state’s Issue 3 pass on Nov. 3, is how marijuana is defined under federal law.

Under federal law, cannabis remains a Schedule I controlled substance. So, even if state voters OK recreational use — as voters have done in Colorado, Oregon, Washington, and Alaska — employers in Ohio still can ban the drug in the workplace and expect the courts to back them, Mr. Yates said.

“Employers still have the right to tell employees that ‘We’re going to have a drug-free workplace, but if you test positive there are going to be consequences,’” the attorney said. Mr. Yates said penalties could include discipline and firing.

A key ruling occurred in June, he said, when the Colorado Supreme Court in a 6-0 ruling upheld the firing of a satellite dish employee, Brandon Coats, who smoked medical marijuana while on his own time. The court ruled that “lawful” activities only applied to those lawful under both state and federal laws.

Mr. Yates said company workplace policies that say employees who “test positive” for cannabis can be disciplined or fired should pass legal muster in Ohio. “In fact, that is what I would advise,” he said.

However, employers who use policies forbidding employees to be “under the influence” of marijuana may run afoul of the courts.

That is because there is no legal standard determining how much of the drug puts one under its influence, Mr. Yates said. Standards exist for alcohol impairment, but none have been established for marijuana.

Even without a standard, employers can expect to see detrimental workplace effects if Issue 3 passes, the attorney said.

“In Colorado there has been a dramatic increase in positive drug tests in the workplace,” he said. Predictably, employers have fired those workers who test positive and replacing them has been difficult and expensive, Mr. Yates said.

Employers complain, he said, of being unable to find enough workers who can pass a drug test, he added.

According to the Journal of the American Medical Association, marijuana users have 78 percent more absenteeism, 85 percent more workplace injuries, and 64 percent more discipline problems than others in the workplace.

Still, Issue 3 has a good chance of passing, Mr. Yates said. The latest polls show 84 percent of Ohioans support legislation allowing marijuana for medical use, and 53 percent support its legality for recreational use.

Contact Jon Chavez at: jchavez@theblade.com or 419-724-6128.