Medical Marijuana is a sensitive and controversial topic because of the “conflicting interests” involved.
While 33 states have now legalized medical marijuana through their own state laws, federal law still prohibits it as a Schedule I drug under the federal Controlled Substance Act. In addition, many still believe it’s a harmful drug and the medical community has not fully embraced marijuana for medicinal use (not FDA-approved). However, there is a shift in society and in the political realm to legalize marijuana for certain medical conditions as research has emerged suggesting that it may effectively treat chronic pain, inflammation and other quality-of-life inhibiting symptoms.
Ohio House Bill 523 was signed into law in 2016, making medical marijuana legal in Ohio. After 2 ½ years of establishing the regulatory framework and industry standards (such as who was going to grow it, sell it and use it), medical marijuana law is now operational in Ohio, with the first dispensaries opening in January 2019. The Ohio Medical Marijuana Control Program was established to oversee the cultivating, processing and dispensing involved. Licenses were provided to cultivators as well as dispensaries across Ohio. Doctors are now being certified to recommend marijuana (it cannot be legally prescribed) and there are approximately 400 physicians now certified.
Ohio’s medical marijuana law allows patients suffering from one of 21 qualifying medical conditions (including HIV/AIDS, epilepsy, cancer, PTSD, etc.) to use medical marijuana. The law only allows medical marijuana to be dispensed to patients (or caregivers) who are registered with the State of Ohio and who possess an Ohio-issued patient or caregiver identification card. Ohio’s Medical and Pharmacy Boards are involved in regulating the certification, registration and dispensing of medical marijuana.
The law also states that medical marijuana can only be used in the forms of oils, tinctures or extracts, plant material, edibles, vaping and patches. Smoking and other combustion of medical marijuana is not allowed. Home growing marijuana is also prohibited.
How Are Employers Handling Medical Marijuana and What Are Their Options?
Currently, under Ohio’s medical marijuana law, employers are not required to accommodate a job applicant’s or employee’s use of medical marijuana (despite holding an official medical marijuana card). Therefore, Ohio employers can refuse to hire or fire (or take any adverse employment action against) an applicant or employee because of the person’s use, possession, distribution, being under the influence of or testing positive for medical marijuana.
Because Ohio employers can still maintain zero-tolerance/drug-free policies at their discretion, medical marijuana users may be faced with a choice – not use medical marijuana or work elsewhere.
For employers who have contracts with or receive grant money from the federal government, they will have to abide by the federal Drug Free Workplace Act, which would prohibit medical marijuana. This is also the case for Department of Transportation (DOT)-regulated positions.
In light of this, any employer (in the public or private sector) who has federal ties or is under DOT regs will not be able to make accommodations for medical marijuana users as they will be required to maintain a drug-free workplace. State or city employers may or may not allow for accommodation depending on whether they must follow laws mandating drug-testing and prohibiting all marijuana use.
On the other hand, we are finding that employers (who are not obligated under federal law) are rethinking their policies and, as a practical business matter, some are beginning to revise their policies to accommodate medical marijuana use and not outright refuse to hire or terminate someone who tests positive for marijuana. Some employers are taking the stance that medical marijuana is like any other prescription medications and are making the necessary accommodations to employees who have side effects from these drugs (i.e. moving someone out of a safety sensitive position).
Right now, Ohio is considered a “business-friendly” state, providing the opportunity to choose whether to accommodate medical marijuana or not. This may change in the future with more and more states and courts leaning towards accommodation. In the meantime, Ohio employers have the flexibility to decide.
For Ohio employers who wish to maintain a zero-tolerance policy, they are able to do so. These employers should review their policy and clearly state that the employer prohibits its employees from using any form of marijuana for any purpose, including for medical use.
For Ohio employers who do not have federal contracts or DOT-regulated positions, they are able to accommodate medical marijuana use at their discretion. It is best practice that these employers, too, review and revise their existing policy. The policy should let employees know they will consider an accommodation request for medical marijuana and then identify the steps that employees will need to follow to make this request.
Even if an employer allows for accommodation, they do not have to permit medical marijuana to be used during working hours or permit users to be “high” during the workday. The policy should explicitly state this.
Because this is an area that continues to be “in flux” regarding employer/employee rights, best to keep a pulse on the law and contact us at ImagineHR if you have any questions!