OH: Will Your Employer Permit Medical Cannabis

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The state’s legalization of medical cannabis in 2016 did not require employers to change their drug policies.

So, in anticipation of the Ohio Medical Marijuana Control Program becoming fully operational this fall, some Stark County employers have reinforced drug-free policies or discussed giving employees leeway. Others have not yet broached the topic.

“You’ll have kind of a mix of reactions from businesses, and that’s consistent with what we see from other states,” said Thomas Rosenberger, executive director of the National Cannabis Industry Association of Ohio — a state affiliate of the national trade and advocacy organization.

For several of Stark County’s top employers, rules reinforce federal law and prohibit possession, use or being under the influence of cannabis at a workplace or while working.

The county of Stark — listed in a 2016 county auditor report as the second-largest employer with more than 2,600 employees — followed the County Commissioner Association of Ohio’s guidance, said Human Resources Director Michael Kimble.

“I don’t know that it was ever anything that we strongly considered ever allowing,” he said.

In spring of last year, Kimble recommended the county update its policy to state cannabis use is prohibited “irrespective” of state law. The county conducts drug tests before hiring employees and if there’s reason to suspect drug use, he said.

People who hold a commercial driver’s license, regardless of employer, are subject to random drug tests as part of federal license requirements.

Other top employers shared their policies via email:

TimkenSteel: “TimkenSteel’s policy is that the use of marijuana for medical and/or recreational purposes, even if permitted by state law, regulation or ordinance, is not considered as acceptable,” wrote spokeswoman Carla Wooley.

Fresh Mark: “With the anticipated fall time frame of the state’s initiative, it’s too early for us to share any information related to company policy,” wrote Brittany Julian, director of corporate communications. “There is nothing more important to us than the health and safety of our employees. All of our facilities are committed to the well-being of our employees.”

Mercy Medical Center: “Mercy Medical Center is currently working on a policy that aligns with Mercy’s mission for patients and employees,” wrote spokeswoman Cindy Hickey. She noted the state law maintains drugged driving laws and an employee’s ineligibility for workers’ compensation if an injury is linked to cannabis use.

Aultman Hospital (Stark County’s largest employer): “At Aultman, safety is our top priority,” wrote spokesman Jason Clevenger. “Our substance abuse policies are written and enforced to establish and maintain a safe environment for patients, visitors, customers and employees. Aultman does not allow employees to work under the influence of any controlled substance.”

Stark State College: The college recently updated its drug-free workplace policy to state, “The use and possession of marijuana is prohibited under college policy and a crime under federal law. This prohibition applies even when the possession and use would be legal under the laws of the state of Ohio. Employees with written recommendations for medical marijuana are not permitted to use marijuana on campus, in the conduct of college business, or as related to any college activity.” Marketing Director Robyn Steinmetz noted the policy includes the option of disciplinary action and is “in line with state law and pretty consistent with many other colleges and universities.”

Canton City Schools: Spokeswoman Lisa Reicosky stated district policy updates have gone through a subcommittee process and are expected to be adopted by the Board of Education before the state program becomes fully active in September. “The Drug-Free Workplace policy states that the board prohibits the use and possession of legally acquired medical marijuana in the workplace,” she wrote. “It also states that if the district has reasonable suspicion that an employee is under the influence, the employee may be subject to testing. Employees who violate the policy will be subject to disciplinary proceedings in accordance with prescribed administrative regulations, local, state and federal law, and the negotiated agreement up to and including termination.” If employees seek workers’ compensation, the district could ask them to prove that they were not under the influence of alcohol, marijuana or other controlled substances not prescribed by a doctor.

Unanswered questions

In Canton and Alliance, where city-created regulations allow medical cannabis businesses to operate, administrators are questioning how to strike a balance between employee health and safety.

“We very much want to be respectful of people’s rights and the laws,” said Michael Dreger, director of public safety and service for Alliance, who added he also needs to ensure a safe work environment.

The city has not yet crafted language specific to medical cannabis but updated its policy related to narcotics, which include opioids, in recent years. Dreger said physicians have to certify that prescribed narcotics won’t affect employees’ job performance if they continue working.

The drug is not disclosed, protecting the patient’s privacy, and Alliance reserves the right to seek a second opinion if behavior becomes a concern.

Dreger said employees are tested for drugs when they’re hired and if they cause an accident. He doesn’t expect employees will be allowed at work “under the influence” but doesn’t know how the city might discern illicit use from that consistent with the state’s medical cannabis program.

The common urine test can detect cannabis compounds for weeks after use.

“They could be in compliance with Ohio law on a Saturday, but we couldn’t distinguish that when they come to work on Monday,” Dreger said. “So, that’s a bit of a concern.”

Rosenberger said he believes researchers in the Akron area are working on a more accurate test for cannabis, but the risk of testing positive remains for patients.

“I don’t know at what point THC is low enough to not show up in there,” he said. “I don’t know if there is a point on that, but if you’re using a product that contains THC, you should expect for that to show up on a drug test.”

Ohio’s medical program allows cannabis consumption through oils, tinctures, plant material, edibles, patches and vaporization. Smoking is not allowed.

Not all products have the psychoactive effects associated with Tetrahydrocannabinol, or THC. Both cultivators approved to operate in Canton — Terradiol and Mother Grows Best — included plans in their state application to grow cannabis strains featuring low (less than 1 percent) to high (about 20 to 25 percent) levels of THC.

The state’s maximum limit is 35 percent THC in plant material.

Canton Law Director Joseph Martuccio said he used a cannabis ointment while vacationing last year in Colorado to relieve arthritis pain in the months before his hip replacement surgery. He found the effect similar to over-the-counter pain creams.

“There was no buzz factor,” he said. “There was no alteration of consciousness.”

However, Martuccio said, the product had “trace amounts” of THC and is legal only in states that allow medical or recreational cannabis. He also expressed interest in the potential of medical cannabis to reduce opioid use but understands why some employers might opt for a strict stance.

“That’s the easy way to deal with it, and the state does not prohibit zero tolerance,” Martuccio said. “But, again, we’re looking at an alternative to opioids. We should probably keep an open mind.”

Deputy Chief Counsel Kristen Bates Aylward, who responded by email on behalf of Canton’s human resources director, stated the city will update its policies to address medical cannabis use. Details will depend on collective bargaining agreements.

“Obviously, that may be different for different classes of employees,” she wrote, noting “safety-sensitive” positions such as police officers, fire fighters and commercial drivers. “I am sure that our new policies will be in harmony with what we do currently, which at a minimum mandate that no employee can come to work impaired from any legally prescribed drug.”

In the industry

People who hope to work in the local cannabis industry also will have to be mindful of workplace policies.

The chief executive officer of Terradiol, Canton’s largest cultivator, reported that the company has “no issue” with employees’ medical cannabis use if it’s in compliance with state law.

“We would however, expect them to not be using a product that is affecting their work during business hours,” John Vavalo wrote in an email. “Just as with any other medical prescription that does not allow for heavy machinery operation.”

Although health insurance companies do not cover medical cannabis, cannabis-related businesses have the option of providing health insurance, Rosenberger said. However, it’s unclear whether or how some labor practices apply to the cannabis industry.

“Any time you have that intersection of federal law and/or federal programs and a medical marijuana program, because it is still an illegal substance at the federal level, it gets a little bit murky what applies and what doesn’t,” Rosenberger said.

Terradiol’s state application lists benefits for employees that include vacation and other time off, health and dental coverage, workers’ and unemployment compensation, and a retirement plan.

Ohio’s cannabis program also allows for the creation of a “closed-loop” payment system, which would provide state accounts for transactions between individuals and entities in the program.

Rosenberger said the National Cannabis Industry Association of Ohio opposes the proposal because it would limit cannabis suppliers and patient access. As the industry has grown nationwide, financial payments have evolved from cash-only.

“A lot of these businesses actually do have access to banking and are able to pay their employees just like any other business would,” he said.

The Financial Crimes Enforcement Network (FinCEN) has guidelines for banks that provide services to cannabis-related businesses, which must prevent distribution to minors and keep revenue from criminal activities. A total of about 400 banks and credit unions nationwide were working with such businesses by September 2017, according to the FinCEN.