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Legal Experts Address Marijuana Legalization in Ohio

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The leader of one of the nation’s largest metropolitan chambers of commerce is urging local businesses to come out against a ballot issue that would legalize both medical and recreational marijuana.

But legal experts and proponents of Issue 3 say employers need not fear if marijuana is legalized in Ohio.

On Nov. 3, Ohio residents will be asked to vote on both Issue 3 and Issue 2, the Ohio Initiated Monopolies Amendment put on by lawmakers in response to ResponsibleOhio’s campaign to legalize marijuana here. Issue 3, or the Marijuana Legalization Initiative, would create 10 facilities with exclusive rights to commercially grow the drug.

Joseph Roman, president and chief executive officer of the Greater Cleveland Partnership, is suggesting employers get involved in the campaign to defeat Issue 3 and support Issue 2.

“If Issue 3 does pass, employers are going to have to take a deep look at all of their own policies,” said Roman. “First and foremost, we’re trying to keep marijuana legalization from happening. One big area of concern is that it’s becoming a challenge to find new workers and fulfill your workforce needs. Employers are having difficulty with drug testing today. Legalizing another substance is not going to make it easier to find qualified candidates.

“The complicating factor of legalized marijuana from a workplace perspective is at the federal level, the drug would continue to be viewed as illegal. If Ohio passes Issue 3, an employer would need to be attentive to both state and federal laws, and what we do know is that lawsuits are an expense.”

Stephen Norton, a spokesman for Mentor-based Steris, said the global manufacturer opposes Issue 3.

“It’s bad for business; it’s bad for Ohio,” said Norton. “Steris is one of the safest companies in America by any generally accepted metric. We believe the ballot issue passage would compromise workplace safety. We are working to get the message out to vote no on Issue 3 and vote yes on Issue 2. Ohio should not be among the first states to pass something with so many unknowns.”

Per company policy, applicants to Steris, which employs about 8,000 people, must consent to a drug test. While employed, Steris can require an employee to take a drug test at any time.

“We do maintain a drug-free workplace in compliance with existing regulations and we expect to continue to do so even if Issue 3 passes,” added Norton. “If Issue 3 passes as proposed, employees would still be subject to the same restrictions as other medications — even with medical marijuana.”

Faith Oltman, a spokesperson for ResponsibleOhio, said employers would continue to maintain their rights to establish drug-free policies even for legal drugs, such as some companies do with banning nicotine.

“There is this big misconception that employers can’t drug test (for legal drugs), but they can,” she said. “As far as workplace safety goes, studies show that in states that have legalized marijuana, employees who get into accidents on the job are no more likely to test positive for marijuana than a random group of employees.”

Christine Link, executive director of the ACLU of Ohio, said the civil liberties group has never liked mandatory drug testing.

“It triggers cheating and some aren’t reliable,” said Link. “Poppy seeds can show up as THC, and there are other substances that give false positives, particularly with marijuana. Issue 3 would not change an employer’s ability to hire and fire. What we do see is an opportunity for businesses to develop better tests. You may not have smoked marijuana in the last two weeks, but it will still show up in your bloodstream. What do you do when 50 percent of your applicants have positive tests? A lot of people now smoke marijuana, and it’s illegal. Just think what it will be like when it’s legal.”

Mary Jane Trapp, an attorney with Thrasher Dinsmore & Dolan in Cleveland and Chardon, said legal marijuana would not necessarily hurt the workplace.

“We tell our clients to hope for the best and plan for the worst,” said Trapp. “Marijuana is still illegal under federal law. Until that changes, which I don’t see on the horizon, employers are protected under federal law. If a business had a zero tolerance policy before Issue 3, they’ll have a zero tolerance policy after Issue 3. If it passes, employers and human resource professionals will need to sit down and review their employee handbooks so that the drug use policies they have in existence now will also cover marijuana and medical marijuana.

“I don’t see a huge change for employers. If they fail to update their policy and procedure manuals or if they don’t have a drug use policy, then they might have some problems. People get concerned that there’s going to be a flood of litigation. I don’t see a flood of litigation. I see a few test cases coming, but I don’t think the sky’s gonna fall.”

However, Trapp said marijuana legalization has affected the legal system in another way.

“Colorado has found a substantial increase in OVIs associated with marijuana use,” she said. “They have these pot tourists who come out there and say, ‘Oh, wow! I can smoke weed in Colorado!’ Well, yes and no. You can buy marijuana there, but you can’t smoke it at the marijuana store, you can’t smoke it on the street like you would a cigarette, and most hotels have a no-smoking policy.”

Oltman believes legal pot in Ohio has more positives than negatives.

“It will be a boon to businesses in our economy in Ohio,” she said. “Grow sites, manufacturing, testing facilities, innovation centers, and local entrepreneurs can open up retail locations. We are conservatively estimating that this industry could bring 10,000 jobs to Ohio.”

ABOUT THE AUTHOR

Tracey Read covers the court beat in Cuyahoga, Lake and Geauga counties. Reach the author at tread@news-herald.com or follow Tracey on Twitter: @TraceyReporting.