Over the summer, Ohioans will begin grappling with implementation of House Bill 523, the new law that legalizes medical marijuana in Ohio effective September 6, 2016. Given the rise of medical marijuana legalization across the nation and the lack of uniformity in state regulations, it’s reasonable to anticipate confusion and misperceptions about what Ohio’s new law allows and how it will operate. Moreover, in light of last year’s high-profile marijuana constitutional amendment and the possibility of related ballot initiatives later this year, we can expect that there will be uncertainty regarding legality of marijuana possession and use.
Although it will likely take Ohio up to two years to draft and implement regulations governing the manufacture and distribution of medical marijuana, we can expect that patients affected by one of the 20 qualifying medical conditions will begin travelling to other states in 2016 to purchase medical marijuana for use in Ohio. Consequently, it is critically important for employers to identify how Ohio’s new medical marijuana law will impact workplaces in our state.
Drug-free workplaces and zero-tolerance drug policies remain alive and well
Nothing within Ohio’s new law interferes with an employer’s right to prohibit the use, possession or distribution of marijuana in the workplace. However, although drug-free workplace and zero-tolerance drug policies will remain as is, employers should still review and update these documents to specifically state that, despite Ohio’s new law, medical marijuana is prohibited under these policies.
For those employers that may not have a drug-free workplace or zero-tolerance drug policy in place, it is essential that one is drafted before September. Otherwise, it is arguable that any employee could possess or use medical marijuana in the workplace. At a minimum, the updated policies should be distributed with written employee acknowledgements secured. Best practice recommends providing training for employees in understanding these policies and how potential medical marijuana workplace issues will be handled by the employer.
No obligation to accommodate an employee’s medical marijuana use
An employee or job applicant currently engaging in illegal use of drugs is not a qualified individual with a disability for purposes of the Americans with Disabilities Act (ADA). Because marijuana is listed on Schedule I of the Controlled Substances Act (CSA), it is an illegal drug. Although the U.S. Department of Justice’s enforcement policy makes possession of small amounts of marijuana authorized under state law a low priority, it remains an illegal drug under the CSA. Employers are not required to accommodate an employee’s medical marijuana use under the ADA. Similarly, there is no recognized obligation under the FMLA to provide leave related to medical marijuana use to treat serious or chronic illness. Ohio’s new law does not change analysis of the ADA or FMLA and clearly states that an employer is not required to provide a legal accommodation to an employee to use, possess or distribute medical marijuana.
It’s legal to fire employees for use, possession or distribution of medical marijuana
For now, employers retain the right to fire an employee because of his or her use, possession or distribution of medical marijuana. Ohio’s new law specifically states that it does not authorize employees to sue an employer for adverse employment action related to medical marijuana. The law also provides that employers are not required to curtail such adverse employment action due to an employee’s use, possession or distribution of medical marijuana. Because the ADA does not protect individuals currently using illegal drugs, an employee may still be fired for periodic use of marijuana (medicinal uses included) in the weeks and months before the discharge. As an aside, nothing within Ohio’s new law alters compliance requirements related to applicable U.S. Department of Transportation regulations.
Medical marijuana users are not entitled to unemployment benefits
Ohio’s medical marijuana law contains a provision stating that, for purposes of Ohio’s unemployment compensation law, an employer has “just cause” to fire an employee for his or her use of medical marijuana, provided the use violated the employer’s drug-free workplace or zero-tolerance drug policies. Key to this protection is the existence of clear drug-free or zero-tolerance drug policies and a demonstration that the employee had prior notice and had acknowledged them.
Workers’ compensation claim defenses are unchanged
Under existing Ohio law, intoxication (including marijuana) is a defense to a claim for workers’ compensation benefits. Ohio’s new medical marijuana law does not alter an employer’s right to challenge workers’ compensation claims where medical marijuana use results in injury and allows it to utilize a positive, post-accident drug screen for marijuana. In other words, if an employee is fired as a result of medical marijuana use, the discharge will be deemed “for just cause” and the employee will be ineligible for unemployment compensation. Similarly, an employee will not be eligible for workers’ compensation if his or her injury was a result of being under the influence of marijuana.
Throughout this year, the U.S. Drug Enforcement Administration has announced that it will make a decision on whether to reschedule marijuana’s classification under the CSA. If reclassified or removed from CSA regulation, the implications under the ADA and FMLA will need to be reevaluated regardless of Ohio’s new medical marijuana law, as freestanding protections could be created under those federal laws for legal medical marijuana users in Ohio.
Sarah J. Moore is a partner at Fisher Phillips – Cleveland. She represents and counsels private and public sector employers on union challenges, collective bargaining, labor relations, and employment and policy matters.