Katelyn Baker
Well-Known Member
Andy Kaplan has been practicing law with the Cincinnati office of Vorys, Sater, Seymour and Pease for more than 30 years. He focused on civil litigation then labor and employment law. Last year, almost accidentally, he added another file to his portfolio: marijuana.
The Cincinnati native and graduate of the law school at Georgetown University is developing a specialty on the effects of Ohio's new medical-marijuana law on bosses and workers. The Enquirer conducted a question-and-answer interview with Kaplan on the law. Answers have been edited for clarity and brevity.
Question: How did you get involved in the subject of marijuana?
Answer: Last year, we did our yearly client briefing in our workers' compensation practice. At that time, the Issue 3 constitutional amendment (that would have legalized marijuana in Ohio) was on the ballot, and we realized that somebody needed to speak on the topic. It just kind of fit in nicely.
Q: What have you learned about the new Ohio law?
A: When I did speak about Issue 3, I knew it was different from the Colorado (legalization) because the Colorado law expressly said an employer didn't have to extend accommodation in the workplace. Issue 3 had the same language but it also expressly said that if you're a certified medical-marijuana user, you can self-administer the drug like you would any prescription medication. I thought those things were conflicting. That seemed to open a door to an employee self-medicating during the work day. That's very different from the law we have now.
Q: How different?
A: If an employer doesn't want to permit or accommodate medical marijuana in any way, it can do that. It can make that choice. This law is really to protect employers who want to make that choice. It says straight out that an employer need not permit or accommodate use, distribution or possession of medical marijuana.
Q: Shall we start a pool on when the first lawsuit will be filed on that subject?
A: I'm sure that's coming fast.
Q: What if an employer wants to be compassionate to a medical marijuana user?
A: I think I'd talk about the risks of doing it. If an employee says, "I need to use medical marijuana during the day, maybe to control seizures, or it helps me with pain," what we don't know is what the impact is going to be on that person's ability to the job and do it safely. Without knowing that, that person could be a risk. You don't want the worker to be in a safety-sensitive position. Even if he's sweeping the floor, if he doesn't have his wits about him, and he's near a press or another piece of machinery, he could get hurt, which would be workers comp. If it's an injury to a co-worker, it's workers comp. If it's a third party who's hurt, that's a lawsuit.
Q: Does this law change drug-testing policies for employers?
A: No. In Ohio, an employer can set up a drug testing program for any reason. It's pretty broad what their rights are, for random testing, reasonable suspicion, post-accident testing.
Q: Does this law change disability law?
A: We are definitely going to see cases like that. That could up in the first instance of someone applying for a job. You could have a case of someone who is filling out a job application and then says, "I'll be upfront with you, I have cancer, and I use medical marijuana to help me with the symptoms." Now the employer knows the person's disability, and if the employer doesn't hire that person, that person might argue, reasonably, that he or she didn't get the job because of the disability. I would counsel that the employer should write it down, that the employer has elected to maintain a zero-tolerance policy, and we won't hire people who use medical marijuana. That way, you at least have a piece of paper.
Q: What does the case law say?
A: In Colorado a year ago, there was a case, Coats vs. Dish Network, of a paraplegic and medical-marijuana cardholder who had serious chronic pain. He was tested on a random drug test, and it was positive, but there was no evidence of impairment, no evidence of use in the workplace. Even though Colorado legalized marijuana, the state Supreme Court said the worker doesn't have any protection under state law. So even though the use of marijuana was legal, the termination was legitimate. In Ohio, the law is lined up strongly behind the employer.
News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: How Will Medical Marijuana Affect Your Workplace?
Author: Anne Saker
Photo Credit: None Found
Website: WKYC
The Cincinnati native and graduate of the law school at Georgetown University is developing a specialty on the effects of Ohio's new medical-marijuana law on bosses and workers. The Enquirer conducted a question-and-answer interview with Kaplan on the law. Answers have been edited for clarity and brevity.
Question: How did you get involved in the subject of marijuana?
Answer: Last year, we did our yearly client briefing in our workers' compensation practice. At that time, the Issue 3 constitutional amendment (that would have legalized marijuana in Ohio) was on the ballot, and we realized that somebody needed to speak on the topic. It just kind of fit in nicely.
Q: What have you learned about the new Ohio law?
A: When I did speak about Issue 3, I knew it was different from the Colorado (legalization) because the Colorado law expressly said an employer didn't have to extend accommodation in the workplace. Issue 3 had the same language but it also expressly said that if you're a certified medical-marijuana user, you can self-administer the drug like you would any prescription medication. I thought those things were conflicting. That seemed to open a door to an employee self-medicating during the work day. That's very different from the law we have now.
Q: How different?
A: If an employer doesn't want to permit or accommodate medical marijuana in any way, it can do that. It can make that choice. This law is really to protect employers who want to make that choice. It says straight out that an employer need not permit or accommodate use, distribution or possession of medical marijuana.
Q: Shall we start a pool on when the first lawsuit will be filed on that subject?
A: I'm sure that's coming fast.
Q: What if an employer wants to be compassionate to a medical marijuana user?
A: I think I'd talk about the risks of doing it. If an employee says, "I need to use medical marijuana during the day, maybe to control seizures, or it helps me with pain," what we don't know is what the impact is going to be on that person's ability to the job and do it safely. Without knowing that, that person could be a risk. You don't want the worker to be in a safety-sensitive position. Even if he's sweeping the floor, if he doesn't have his wits about him, and he's near a press or another piece of machinery, he could get hurt, which would be workers comp. If it's an injury to a co-worker, it's workers comp. If it's a third party who's hurt, that's a lawsuit.
Q: Does this law change drug-testing policies for employers?
A: No. In Ohio, an employer can set up a drug testing program for any reason. It's pretty broad what their rights are, for random testing, reasonable suspicion, post-accident testing.
Q: Does this law change disability law?
A: We are definitely going to see cases like that. That could up in the first instance of someone applying for a job. You could have a case of someone who is filling out a job application and then says, "I'll be upfront with you, I have cancer, and I use medical marijuana to help me with the symptoms." Now the employer knows the person's disability, and if the employer doesn't hire that person, that person might argue, reasonably, that he or she didn't get the job because of the disability. I would counsel that the employer should write it down, that the employer has elected to maintain a zero-tolerance policy, and we won't hire people who use medical marijuana. That way, you at least have a piece of paper.
Q: What does the case law say?
A: In Colorado a year ago, there was a case, Coats vs. Dish Network, of a paraplegic and medical-marijuana cardholder who had serious chronic pain. He was tested on a random drug test, and it was positive, but there was no evidence of impairment, no evidence of use in the workplace. Even though Colorado legalized marijuana, the state Supreme Court said the worker doesn't have any protection under state law. So even though the use of marijuana was legal, the termination was legitimate. In Ohio, the law is lined up strongly behind the employer.
News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: How Will Medical Marijuana Affect Your Workplace?
Author: Anne Saker
Photo Credit: None Found
Website: WKYC
