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Probable Legalization of Marijuana in Ohio Will Likely Lead to Necessary Changes in Employers’ Substance Abuse Policies

By Brian F. Lange

The last decade has seen a growing sentiment in this country for the legalization of marijuana, especially when prescribed by a physician for medical purposes. Currently, 20 states and the District of Columbia have legalized medical marijuana with a physician's recommendation, and Colorado and Washington have legalized the recreational use of marijuana. Further, the United States Justice Department has made a statement that they will not challenge states' marijuana laws so long as they do not run counter to federal enforcement policies, which include sales to minors. If the voters have any say on the matter, it is likely that Ohio will be joining the states that have legalized marijuana, at least for medical purposes, as a recent Quinnipiac University Poll reflected that 87% percent of Ohio voters are in favor of legalization of medical marijuana with a physician's recommendation. Although there is no imminent legislation to legalize marijuana in Ohio for any purpose, employers should be prepared if legislation is passed as any potential legalization may require a change in substance abuse policies throughout Ohio.

It is very common for employers in Ohio to have strict substance abuse policies that result in employee termination following a positive test for any number of drugs including marijuana. Further, many employers require regular drug testing of their employees. If marijuana is legalized in Ohio for medical purposes or otherwise, employers must consider how this will affect any substance abuse policy currently in place, and determine whether the policy must be adjusted, either in enforcement or in structure.

Employers should pay particular attention to a Colorado Supreme Court Case that may have major ramifications on employer policies on marijuana use. In Coats v. Dish Network (No. 13SC394), the Colorado Supreme Court will consider whether an employer may lawfully terminate an employee for off-duty marijuana use, even if the employee is not impaired on the job. Brandon Coats, a customer service representative with Dish Network, and also a wheelchair bound quadriplegic, was terminated in 2010 for failing a random drug test, which came back positive for marijuana. Mr. Coats used marijuana to control muscle spasms pursuant to a physician's order. He alleged that he never used marijuana outside of his license, that he never used marijuana on Dish Network property, and that he was never impaired at work. Meanwhile, Dish Network's sole reason for termination was the failed drug test.

On April 25, 2013, in a 2-1 decision, the Colorado Court of Appeals upheld Dish Network's decision to terminate Mr. Coats. The Court found that the use of marijuana is not a "lawful" activity as defined by Colorado's Lawful Activities Statute (24-34-402.5), which prohibits discharge of employees that engage in any lawful activity off of the employer's premises outside of work hours, because marijuana remains illegal under federal law. The Colorado Supreme Court accepted the appeal of the April 25, 2013 decision and will consider whether the Colorado Lawful Activities Statute protects employees from discretionary discharge for lawful use of marijuana and further whether the Medical Marijuana Amendment to the state constitution confers a right to use marijuana to persons licensed to use marijuana within Colorado.

Although Ohio does not have a "Lawful Activities Statute" similar to Colorado, the outcome of the Colorado case may play a role in any future legislation in Ohio related to the use of medical marijuana. Further, while the Coats termination may ultimately be determined to be lawful, and any future legislation in Ohio may not prohibit termination based on lawful use of marijuana, it would be wise for employers to be aware of this issue in the coming years to stave off any potential claim for wrongful termination.