Now loading.
Please wait.

menu

Cleveland: 216-696-4441

Columbus: 614-224-4411

Z&R Press

News / PublicationsPressCrain's Cleveland Business, July 22, 2017
News / PublicationsPressCrain's Cleveland Business, July 22, 2017

Press and Media

Crain's Cleveland Business
Ohio Employers Confront Marijuana Use
July 22, 2017

Lake View Cemetery Heritage ReView
Trustee Spotlight: Andrew Zashin
Spring 2017

Sports Illustrated
Lane Johnson's Bold Move To Sue His Own Union Is Rare, But Not Unprecedented
January 11, 2017

Law360
Packers Player Drops NFL Drug Suspension Dispute
December 19, 2016

Sports Business Daily
NFL, NFLPA Appoint Das As Third Arbitrator In Michael Pennel Lawsuit
December 5, 2016

Sports Business Journal
Eagles Lineman Challenges NFL and NFLPA in NLRB Filings
December 5, 2016

Law360
Eagles Lineman Says Suspension Violates Federal Labor Law
November 29, 2016

The Business of Sports with Andrew Brandt
RTAB #30: Lane Johnson's Legal Team (Audio Interview)
November 29, 2016

Cleveland Jewish News
Ohio Woman Receives Orthodox Divorce Decree
January 14, 2016

BNA's Health Law Reporter
Surprise! The NLRB Says You Just Might Be a 'Joint Employer'
September 24, 2015

BNA's Health Law Reporter
NLRB Adopts New Joint Employer Standard; Ruling Could Affect Health-Care Industry
September 3, 2015

BNA's Health Law Reporter
Challenge to NLRB Election Rule Fails; Employers Urged to Prepare New Game Plan
June 11, 2015

American Bar Association Section of Labor and Employment Law
Member Spotlight: George S. Crisci
April 13, 2015

The Plain Dealer
Attorney Goes To Bat for Northeast Ohio
January 18, 2015

Cleveland Jewish News
Profile on Andrew Zashin
January 15, 2015

"Here and Now" National NPR Show - Audio Interview
In A Divorce, Who Gets To Keep The Dog?
December 4, 2014

Crain's - Article and Video
Zashin & Rich embraces Cleveland roots and rock 'n' roll heritage
November 16, 2014

BNA's Health Law Reporter
Justices Reject NLRB Recess Appointments; Significant Health Care Decisions in Limbo
July 10, 2014

BNA's Health Law Reporter
The EEOC and FTC Turn Up the Heat on Employer Background Checks
April 2014

Crain’s
Zashin & Rich move marks big milestone
for E&Y Tower
November 2013

Cleveland.com
Zashin & Rich law firm leases last full floor of Ernst & Young Tower at Flats East Bank project
November 2013

Associated Press
US Claims Father Illegally Moved Kids to Gaza
May 2012

2012 Ohio Super Lawyers
Mentors | Andrew Zashin: Reminiscing About Robert Zashin
January 2012

CCH Employment Law Daily
NLRB NEWS - Controversy Erupts Over NLRB Recess Appointments
January 2012

Huff Post
Divorce's Impact On Small Businesses Can Be 'Immense'
October 2011

The Today Show - Video
Accused Facebook bigamist heads to court
September 2010

MSNBC
Facebook Busts Accused Bigamist - Woman Finds Her Prince Charming Has Married Another
July 2010

WKYC - Article and Video
Cleveland woman discovers husband's 'other' wife via Facebook
July 2010

Cleveland Jewish News
New custody center in Israel is Zashin’s passion
January 1, 2010

Worth Magazine
Top 100 Attorneys 2007
Andrew Zashin

Inside Business Magazine
Connecting Through Separation
Profile on Andrew Zashin
December 2007

Cleveland Jewish News
Valuing and dividing assets at the time of divorce
By Andrew Zashin, Esq.
February 2007

Case School of Law: In Brief
Plugged into Family, the Law, and Cleveland
Alumni Spotlight on Andrew Zashin
Spring 2005

Cleveland Magazine
The Divorcing Woman’s Best Friend
Feature Article Profiling Andrew Zashin
November 2004

Crain’s
Companies should consider coverage against employee-related claims
By Stephen Zashin | July 2004

Crain’s
ADR programs can save dollars and time
By Stephen Zashin | November 2003

COSE Update: Legal Ease
One Size Does Not Fit All
(Employment Practices Liability Insurance)
By Stephen Zashin

COSE Update: Legal Ease
Noncompete Agreements
By Michele Jakubs

COSE Update: Legal Ease
Ohio's 'Baby COBRA' Law
By Helena Oroz

Crain's Cleveland Business

Ohio Employers Confront Marijuana Use

July 22, 2017 | By Jeremy Nobile | Download PDF

Ohio Employers Confront Marijuana Use

Ohio may be growing more open to marijuana use, but its businesses aren't.

But they don't really have much of a choice.

Tones could change if overarching state and federal laws related to use of medical cannabis do. But until then, laws are making it quite difficult for any employer to proactively write rules permitting staff to use it as a doctor might recommend once Ohio's medical marijuana program goes into effect in September 2018.

On one hand, federal laws still classify marijuana in the same category as heroin and LSD, and there are no federal laws requiring businesses to accommodate marijuana use. On the other, states across the country are increasingly passing laws permitting some kind of medical or recreational use. The laws simply don't jibe.

And those conflicting laws leave businesses in a conundrum when it comes to allowing use by employees as they're caught between old rules, like zero-tolerance policies, and changing laws and perspectives on medical marijuana.

As Ohio ramps up to its medical marijuana program, companies here are looking to legal counsel for guidance on tightening rules to make it clear that staff could still be drug tested and fired for having marijuana in their systems — regardless of state laws that might allow patients to use.

"What employers are doing right now, if they're being advised properly, is creating some type of workplace policy specific to medical marijuana usage," said Thomas Haren an attorney with Seeley, Savidge, Ebert & Gourash focused on Ohio's budding medical marijuana industry. "Broadly speaking, medical marijuana doesn't change Ohio employment law all that much. We are still an at-will employment state. You can still refuse to hire, suspend, terminate or take adverse employee action if they use medical marijuana in violation of policy."

If there's no clearly written policy and someone is tested and fired for marijuana use, they're potentially liable for unemployment claims, regardless of any doctor recommendation saying the drug would benefit the person (doctors, in fact, only recommend medical marijuana to patients, but don't prescribe it, because of federal laws. This is why a patient doesn't get their marijuana from a pharmacy.).

"But what about employers who don't want to necessarily say no? I have seen that," said Stephanie Trudeau, a labor and employment litigator with Ulmer & Berne LLP. "They are torn over their desire to find a way to make the legalization of it blend together in a safe workplace in harmony. I've talked to some who are struggling over the idea of making employees choose between keeping their job or keeping a treatment the employee says is medicine that improves their quality of life."
A budding reality
As would be expected, states that have legalized marijuana in some form are, indeed, seeing sharp increases in failed drug screens. That means marijuana in the workplace will be a growing reality.

According to research company Quest Diagnostics' annual drug testing index released in May, marijuana positivity in the U.S. workforce has increased 75% in three years — from 5.1% in 2013 to 8.9% in 2016.

In Colorado and Washington, the first states to approve recreational marijuana use, the increase in urine screens showing marijuana outpaced the annual national average, according to the study. Colorado saw an 11% increase between 2015-2016, while Washington increased 9%. That marked both states' steepest year-over-year change since they passed their recreational laws. The national growth rate in that period is 4%.

Yet, there are a handful of companies who want to be proactive in terms of their own policies on marijuana, but their hands are tied.

A driving issue is that technology in testing isn't at a point yet that can distinguish whether a person is actually high at work versus having taking their recommended cannabis medication on their own time versus substances like alcohol. As Trudeau notes, "The science here is failing us."

"We have some clients that are leaning toward a marijuana 'friendly' approach — they are not concerned about employees using medical marijuana outside of work," said Stephen Zashin, a labor and employment lawyer with Zashin & Rich. Companies he's currently working with include those in manufacturing, service, retail, hospitality, health care, life sciences and technology. "However, the majority of our clients are very opposed to the idea that employees might come to work under the influence of any substance," Zashin said. "This gets complicated with respect to marijuana, which can show up in the user's system long after the effects wear off. Employers are all over the board on this and not one approach fits all." He added that businesses in "safety sensitive" industries, like manufacturers, are naturally the most likely to take the most hard line on use — and there's quite a density of those in Northeast Ohio.

Fighting the stigma
And regardless of laws, there's still a stigma with marijuana use among some people. While companies talk behind closed doors about being proactive and accommodating, despite overall attitudes toward cannabis changing, all are still leery of how that might be perceived in the public. No one seems to want to embrace the tongue-in-cheek title of being the "stoner company." All states allowing some kind of cannabis use are wrestling these issues.

Ohio is just the next line.

Zashin pointed to a recent ruling by the Massachusetts Supreme Court in Barbuto v. Advantage Sales & Marketing LLC. In that case, the plaintiff, who suffers from Crohn's disease and takes medical marijuana for her symptoms, argued she was a "qualified handicapped person" and she should be absolved from the company's policy of not retaining an employee who tests positive for marijuana. Massachusetts justices sided with her, ruling patients who use marijuana for medical purposes can file discrimination claims if they're fired for testing positive, and that allowing her to use it would constitute reasonable accommodation of a disability.

Meanwhile, in 2015, the Colorado Supreme Court ruled that a business can fire an employee for using medical marijuana even if the employee is off-duty and following state laws. That ruling was tied to a case involving a quadriplegic who was fired by Dish Network for using marijuana — as doctors recommended — outside of work.

So as states wrestle with marijuana use in the workforce, each is simultaneously and separately shaping their own approaches. Haren suggests that states like Ohio could be more proactive themselves in helping support development of new technologies to test levels of impairment. Having the proper testing tools and technology could solve a lot of issues.

"It's easier to measure the impact of alcohol. But we're not there yet with cannabis," Haren said. "For us to get a better understanding of the ways cannabis impairs people, and how we actively measure that level of impairment, that would be a good thing."

But until then, expect companies to maintain hard lines of medical marijuana use, leaving some employees to undoubtedly face the difficult decision of choosing jobs over medicine.

All rights Reserved 2017 www.crainscleveland.com