House Bill 523 legalizes medical marijuana in Ohio, but the substantial policy change has minor implications for Ohio employers, for now.
The legislation, signed by Governor Kasich on June 8, authorizes a licensed physician to recommend medical marijuana to an individual diagnosed with one or more of 20 qualifying conditions or diseases. An individual with a valid recommendation may legally consume medical marijuana dispensed as oil, edibles, and patches. Smoking and growing marijuana are prohibited under House Bill 523. Starting on September 6, 2016, the possession and authorized consumption of medical marijuana will not be prosecuted.
House Bill 523 establishes a Medical Marijuana Control Commission to regulate medical marijuana dispensaries, training and qualification of physicians, and the licensing of growers. Until Ohio’s dispensaries are up and running, Ohioans must travel to other states to obtain medical marijuana.
Effect on Employers
House Bill 523 minimally impacts Ohio employers. The legislation sets forth clear safeguards that allow employers to maintain drug-free workplace programs and reasonable human resources policies. The law does not distinguish between public or private employers. Ohio employers are protected by the following provisions of the law:
- Employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;
- House Bill 523 does not authorize an employee to sue his or her employer for an adverse employment action taken related to medical marijuana. Additionally, employers may refuse to hire, discharge, discipline, or otherwise take adverse employment action against an individual due to his or her use, possession, or distribution of medical marijuana;
- Employers may establish or maintain a formal drug-free workplace program. An employer may still discharge an employee for just cause if the employee uses medical marijuana in violation of the employer’s drug-free workplace policy. Moreover, the employee will be ineligible for unemployment compensation if the termination resulted from a violation of the employer’s drug-free workplace policy;
- The Administrator of Workers’ Compensation may still grant rebates and discounts on premium rates to employers that participate in a drug-free workplace program; and
- An employer maintains the right to defend against workers’ compensation claims where use of medical marijuana contributes to or results in injury.
As employees begin to more openly use marijuana under Ohio’s medical marijuana law, issues arising under state and federal disability discrimination laws are likely to complicate decisions involving hiring, discipline, and discharge regarding use of marijuana under policies prohibiting drug use in the workplace. Consequently, employers may at some time in the future be required to accommodate the medical condition that underlies the medical marijuana use under the Americans with Disabilities Act (ADA) and Ohio’s anti-discrimination laws by allowing an employee to use medical marijuana in certain cases.
What should employers do now?
Employers should review and update their formal drug-free workplace programs and their human resources policies to specifically address medical marijuana. Employers now have the option, however, to treat medical marijuana similar to the way they treat the use of legally prescribed drugs.
Individuals may legally use medical marijuana in a few months. Employers should aim to revise their policies, or to at the very least contemplate how to manage employees’ medical marijuana use, before House Bill 523 takes effect. If you have any questions about revising your employment policies or about how the new legislation might affect you, please contact one of our employment attorneys for additional guidance.