Client Alert – Ohio Medical Marijuana

Employment Law Update

August 2016

Governor Kasich signed Ohio HB 523 on June 8, 2016, legalizing the use of medical marijuana in Ohio in limited circumstances.  Although the law technically goes into effect on September 6, 2016, the bill outlines a number of steps that must occur before Ohio’s medical marijuana program is fully established, which could take up to two years.  Nevertheless, it is important for employers to understand what impact this law will have on its substance abuse policies.

The new law permits the usage of medical marijuana, upon a physician’s recommendation, by individuals with the following medical conditions: HIV/AIDS, Alzheimer’s, Amyotrophic lateral sclerosis (ALS), cancer, chronic traumatic encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is chronic, severe and intractable, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury, and ulcerative colitis.  Medical marijuana can only be dispensed via oils, patches, pills, or vaporization.  Smoking marijuana is expressly prohibited under the new law.

The good news for employers is that HB 523 included the following provisions to protect employers’ rights to enforce substance abuse policies:

  • Employers may still implement and enforce drug testing, drug-free workplace policies, and zero tolerance policies;
  • An employer does not need to permit or accommodate an employee’s use, possession or distribution of medical marijuana;
  • Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action because of the use, possession, or distribution of medical marijuana.
  • An employee who is prescribed to use medical marijuana is ineligible for unemployment compensation if the employee is terminated for his or her use of medical marijuana in violation of the employer’s policies; and
  • Employees who are medical marijuana users are ineligible for workers’ compensation benefits if they were under the influence of marijuana at the time the injury occurred or if being under the influence was the proximate cause of the injury.

Marijuana remains classified as an illegal drug under federal law, which means that employers are not required to accommodate its use under the Americans with Disabilities Act (ADA).  Nevertheless, employers will still need to accommodate any disabilities that give rise to the prescription of medical marijuana to the extent a reasonable accommodation is available and will not cause an undue hardship under the ADA.

Employers who wish to prohibit the use of medical marijuana in the workplace and who wish to prohibit employees from being under the influence of medical marijuana at work should consider revising their current substance abuse policies to specifically include a prohibition on medical marijuana use.

If you have any questions or would like to discuss the above issues in more detail, please do not hesitate to contact Bryan Niemeyer, Certified Labor and Employment Law Specialist, Faulkner, Garmhausen, Keister & Shenk, A Legal Professional Association, at 937-492-1271 or bniemeyer@fgks-law.com.

 

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