What Ohio Employers Need to Know about Medical Marijuana
By Andrew Ledebur
Harrington, Hoppe & Mitchell
YOUNGSTOWN, Ohio – With the passage of House Bill 523 last year, Ohio effectively became the 25th state to legalize medical marijuana.
While some continue to debate the efficacy of medical marijuana, what is no longer up for debate is the fact that HB 523 became effective Sept. 8, 2016, and that by the end of September 2018, eligible patients will begin to receive state ID/patient registry cards.
Under the law, physicians have already begun to issue written recommendations that can provide an affirmative defense to drug charges. Many of those being prescribed medical marijuana have successfully procured the drugs from across state lines – mainly from dispensaries in Michigan.
While the law’s full implementation is still more than a year away, employers are likely to begin seeing this issue crop up much sooner. The following are a few basic facts about Ohio’s medical marijuana laws and tips to help you be ready for the fast-approaching eventuality:
Accommodating medical marijuana use is optional, not mandatory
You are not required to permit or accommodate an employee’s use, possession or distribution of medical marijuana. Denial of an employee’s use of medical marijuana is not a violation of the Americans with Disabilities Act and there is no obligation under the Family Medical Leave Act to provide for leave to treat with medical marijuana.
Accommodations can bring risks
If you are considering making accommodations for employee use of medical marijuana, be advised that doing so may impact any rebates or discounts received through the Ohio Bureau of Workers’ Compensation for participation in drug-free workplace programs.
These concerns are, of course, in addition to risks inherent in employees being under the influence of marijuana while on the job.
Your rights as an employer still apply
You can make hiring, firing and disciplinary decisions based on an employee’s use, possession or distribution of medical marijuana.
Terminating an employee for using medical marijuana in violation of your drug policies or programs is considered to be discharge for just cause. Further, the medical marijuana law does not create a cause of action for employees to sue an employer for taking adverse employment actions on the basis of medical marijuana usage.
Policies should address medical marijuana
Moreover, the new law does not impact your pre-existing drug testing, drug-free workplace and zero tolerance policies.
While you do not have to accommodate employees or make exceptions, drug-free and zero-tolerance policies that do not already address the issue do need to be updated to address the topic of medical marijuana.
Forms of medical marijuana matter under the new law
While a person can petition for a waiver from the limitations, the explicitly allowable forms of medical marijuana include: oils, tinctures, plant material, edibles and patches.
The vaporization of marijuana is allowed, but smoking or combustion of medical marijuana is prohibited.
There is a very real potential that an employee could be actively using or under the influence of medical marijuana while at work in a discrete manner that is not perceptible to the naked eye. Employers should be alert to these methods and vigilant in the enforcement of their drug use policies.
Federal law still prohibits medical marijuana
Ohio’s decision on medical marijuana does not interfere with, and is subservient to, any and all federal restrictions on employment and drug testing. Further, it does not permit the use, possession or administration of medical marijuana on federal land located in Ohio.
After a raid in suburban Cleveland found only a small amount of marijuana, a man being treated for glaucoma provided an affirmative defense letter from his doctor. The man was not cited and the authorities returned his prescription marijuana. However, in May 2017, the Department of Justice formally expressed opposition to restrictions on its ability to prosecute marijuana use, possession and distribution under the Controlled Substances Act.
Given the pace of change in labor laws, companies should review their policies on a regular basis. This is true even if your company decides to not make accommodations. As the medical marijuana movement gains traction, there is the possibility that policies may need to change if accommodation becomes mandatory.
As with other restricted drugs, the best way for an employer to protect its workers and itself is to develop a well-defined workplace policy on drug use that addresses medical marijuana.
The author, Andrew Ledebur is an attorney in the Warren office of Harrington, Hoppe & Mitchell. He can be reached at firstname.lastname@example.org or at 330 392 1541. This advisory article is intended to draw attention to potential employment issues but does not replace legal counseling and does not represent a legal opinion or recommendation.
SOURCE: Harriington, Hoppe & Mitchell
Copyright 2018 The Business Journal, Youngstown, Ohio.
Published by The Business Journal, Youngstown, Ohio.
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