On September 6, 2016, House Bill 523 goes into effect legalizing, with certain restrictions, the use, possession and distribution of medical marijuana in Ohio. The soon-to-be enacted law specifically addresses issues related to medical marijuana in the workplace and provides guidance for both Ohio employers and employees. Workers and employers alike should educate themselves on the law in advance in order to avoid problems once the law goes into effect.
The Ohio law legalizes the use of medical marijuana for certain “qualified medical conditions.” Those conditions are: (1) Acquired immune deficiency syndrome; (2) Alzheimer’s disease; (3) Amyotrophic lateral sclerosis (ALS); (4) Cancer; (5) Chronic traumatic encephalopathy; (6) Crohn’s disease; (7) Epilepsy or another seizure disorder; (8) Fibromyalgia; (9) Glaucoma; (10) Hepatitis; (11) Inflammatory bowel disease; (12) Multiple sclerosis; (13) Pain that is either of the following: (i) Chronic and severe; or (ii) Intractable; (14) Parkinson’s disease; (15) Positive status for HIV; (16) Post-traumatic stress disorder; (17) Sickle cell anemia; (18) Spinal cord disease or injury; (19) Tourette’s syndrome; and (20) Ulcerative colitis. The law reserves the right of Ohio’s state medical board to add other diseases or conditions under the applicable provisions of the Ohio Revised Code.
Ohio’s law allows medical marijuana to be dispensed in the forms of oils, tinctures, plant material, edibles and patches. It expressly prohibits smoking or combustion of medical marijuana and permits vaporization.
The law spells out clear rights, restrictions and consequences for Ohio employers and employees in the workplace. First, the law expressly states that under its terms an employer is not required or obligated to permit or accommodate an employee’s use, possession or distribution of medical marijuana. Second, and closely related, the law does not prohibit employers from establishing and enforcing drug testing policies, drug-free workplace policies or zero tolerance drug policies. Third, an employer has the right to refuse to hire, discharge, discipline or take another adverse employment action against an individual because of his or her use, possession or distribution of medical marijuana. Fourth, nothing in the law permits an individual to sue an employer for refusing to hire, discharging, discriminating, retaliating or otherwise taking an adverse employment action against her or him for reasons related to medical marijuana. Fifth, the law does not interfere with any federal restrictions on employment, including the regulations adopted by the United States Department of Transportation. Sixth, an individual discharged from employment because of his or her use of medical marijuana shall be considered discharged for “just cause” under Ohio’s unemployment compensation laws if the individual’s use of medical marijuana violated the employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana. Seventh, the law does not affect the authority of Ohio’s administrator of workers’ compensation to grant rebates or discounts on premium rates to those employers that participate in a drug-free workplace program established under the rules established under the applicable sections of the Ohio Revised Code. Finally, the law does not change an employer’s ability to use intoxication (due to use of medical marijuana) as a defense to an employee’s claim for workers’ compensation benefits.
Employers would be well advised to use the time prior to the law’s effective date to formulate their policies on medical marijuana (if they have not already done that) make sure that their policies are up-to-date. Any revised or new policies as well as any training should be distributed or conducted in advance of the effective date–with receipts from all employees and sign in sheets of all those who attended training–so that everyone is on notice and aware of the employer’s policies regarding medical marijuana and the workplace. Given the potential consequences, including job loss and ineligibility for unemployment compensation in certain instances, employees contemplating use of medical marijuana for any of the medical conditions covered by Ohio’s law should make sure that they are aware of their employer’s policies and attempt to bring about the changes, if necessary, to ensure that individuals can receive appropriate medically authorized treatment without the threat of losing their jobs.