Employers bracing if pot is legalized

Cincinnati area businesses are already pondering what they should do if Ohio votes this fall to legalize marijuana, including use of medicinal pot on the job. Some managers are preparing to relax their drug policies, while many others intend to boost random drug testing.

(Photo: AP Photo/Ed Andrieski)

(Photo: AP Photo/Ed Andrieski)

Employers face that possibility, if ResponsibleOhio has garnered enough signatures to put an amendment on November’s ballot calling for marijuana legalization. Elections officials now are reviewing petitions to see if the proposal will be finally ruled on or off this fall’s ballot.

Legalization “would be a very bad thing (for business),” said Michael Perry, director of business development at Incite Visual Communications in Milford. Perry attended a recent Cincinnati USA Regional Chamber closed forum, where members were encouraged to air concerns about the possibility of marijuana’s legalization in the Buckeye State.

Perry said while he currently does not drug test his employees, he would likely begin to do so if marijuana is legalized. “I think it’s something that doesn’t belong in the workplace,” he said.

In the event that marijuana becomes available for legal sale, experts say the cards are currently stacked in favor of employers over employees.

Kelly Mulloy Myers, a labor attorney at Freking & Betz in Downtown Cincinnati said, “case law shows that there is no protection for recreational marijuana use and a private employer could certainly test (an employee) as they saw fit.” Just as employers can make not smoking tobacco (a legal substance) a condition for hiring and employment, they could do the same thing for marijuana.

Myers cited a recent Colorado Supreme Court decision in June, where the court affirmed a lower court decision stating that an employer could legally terminate employees who consume the drug, even for medicinal purposes. An excerpt from the decision states: “Colorado’s ‘lawful activities statute,’ the term ‘lawful’ refers only to those activities that are lawful under both state and federal law.” Marijuana remains classified by the federal government as a Schedule 1 controlled substance, the most highly controlled group of drugs.

The drug was legalized in Colorado for medicinal use in 2000 and recreational use in 2012. The state began allowing recreational sale in January 2014. Twenty-two other states and the District of Columbia currently have laws legalizing marijuana in some form, according to Governing magazine. Only four states – Alaska, Oregon, Washington and of course Colorado – allow marijuana use in any form.

Myers added that an employee may be able to claim discrimination in drug testing if an employer is found to single out and only test members based certain protected classes, such as employees of one race, gender or medical disability. “In reality, I don’t see that happening, however,” she said.

Other employers see the benefits of marijuana legalization.

Steve Hightower, owner of Hightowers Petroleum Co. and its sister company Hi-Mark Construction Group in Middletown, said he is in favor of legalization if it will contribute to a fairer distribution of justice through the court system.

“My main concern is that too many people’s lives have been ruined because of minor drug offenses that haunt them,” said Hightower, whose firm ranked 34th on the 2014 Deloitte Cincinnati USA 100 list of the largest privately held companies in the Cincinnati region.

Yet Hightower added that he would not allow his more than 200 workers to consume marijuana, and would likely increase drug testing due to the nature of work that his employees must perform, which includes operating heavy machinery, repairing fuel systems and completing inspection of petroleum tanks.

“It doesn’t matter to me if someone has used it (marijuana) in their past, if they can pass a drug test and do good work,” Hightower said.

Tony Codor, assistant director of the Drug Free Action Alliance, a Columbus-based advocacy group that is against marijuana legalization, said one part of the amendment that is of concern is the medicinal use of marijuana in the workplace.

“Some studies say that (for medicinal effects) marijuana must be consumed at least every four hours – how do you think that will affect productivity?” Codor asked the crowd at the recent chamber event.

According to the Substance Abuse Program Administrators Association, there were 13.1 million employed drug users in the U.S. in 2007, with food and construction industries with the most users.

Drug and alcohol problems cost U.S. employers an estimated $276 billion every year, the same study for the association of workplace anti-drug use professionals concluded.

Myers said the Colorado case affirms that employers are not required to allow medicinal marijuana use by workers. “I think employers will likely place restrictions for foreseeable future,” she said.

In Northern Kentucky, where a large portion of its workers come from Southwest Ohio, the Northern Kentucky Chamber of Commerce has not officially taken a position on the topic. “We have no plans to take a position,” added Trey Grayson, the NKY chamber’s president.

Danyette Foulks-Young, senior recruiter with HYUR staffing in Montgomery, said it is likely if legalization passes that companies will more frequently drug test employees they suspect of using marijuana.

“Just because it could be legalized, doesn’t necessarily mean that employers have to allow workers to use it in their spare time,” Foulks-Young said, adding that manufacturers will have much to lose when they already have a hard time finding capable, drug-free labor.

“I just see an increase in testing,” she said.