Thursday, October 22, 2015

More on marijuana and off-duty conduct laws

The Browns still can’t beat the Broncos, and, it appears that Ohio’s proposed off-duty conduct law is a whole lot worse for employers than Colorado’s similar (but very different) statute.

WUII received an email from a long-standing reader, asking if I could reconcile my opinion that Ohio’s proposed off-duty conduct law would prohibit an Ohio employer from terminating an employee for off-duty marijuana use if Issue 3 [pdf] passes, with the decision of the Colorado Supreme Court in Coates v Dish Network [pdf], which held that Colorado’s off-duty conduct law did not prohibit such a termination despite that state’s legalization of pot.

It all comes down to statutory language.

Colorado’s lawful activities statute says, “It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.” In Coates, the Colorado Supreme Court held that because the statute uses the term “any lawful activity,” and marijuana is still illegal under federal law, a termination for the use of marijuana (federally illegal) does not violate the statute. It concluded that “lawful” means lawful under both state and federal law.

Ohio’s Senate Bill 180, however, is drafted very differently. It does not speak of lawful or legal activities. Instead, it prohibits an employer from taking an adverse action against an employee “because the person exercised a constitutional or statutory right.” If Issue 3 passes, it would amend Ohio’s constitution to legalize the sale and use of marijuana. An employee’s lawful use of marijuana outside of work would constitute the exercise of a constitutional right, and a termination for that reason would violate SB 180. An employer, therefore, would violate Ohio’s version of the off-duty-conduct law by terminating an employee for off-duty marijuana use.

Ohio employers, if you want to retain the right to regulate your employees’ use of marijuana off-duty, tell your state legislators to oppose SB 180. It might be good for gun-owner rights (it’s underlying intent), but it’s bad for business.