Ohio Employers: Medical Marijuana Is Here

Physicians in Ohio are now permitted to “recommend” medical marijuana for 21 different medical conditions. Physicians can only “recommend” medical marijuana, as it is not a prescription drug. As a matter of fact, under federal law, marijuana is still considered a Schedule I controlled substance. Just as a refresher, a Schedule I controlled substance is one that has “no currently accepted medical use” and “a high potential for abuse.” Not only is marijuana on this list, but it’s there with drugs of abuse, such as heroin, LSD and ecstasy. 

This week, a dispensary in the small village of Wintersville, near Steubenville, will make history by selling, barring any last minute delays, the first medical marijuana recommended by physicians in Ohio. More than 3,000 Ohio residents already have medical marijuana cards, which demonstrate a physician has recommended it for treatment of a medical condition. Medical marijuana can’t be legally smoked in Ohio. However, it can be vaped, which seems to be a popular trend for nicotine nowadays. It can also be sold as an edible, tincture, pill and some other preparations.

What is an employer to do when an employee shows up at work with some gummi bears or a brownie? What happens when an employee tests positive for THC on a pre-employment drug test and offers a copy of the “recommendation” from his or her physician? Does the employer have to provide a reasonable accommodation?

Ohio lawmakers recognized this challenge. Employers in Ohio are not required to accommodate medical marijuana use in the workplace. Simply put, employers can still maintain a drug-free workplace policy that includes rules against the use of marijuana in any form, including for medical purposes. If an employee in Ohio has a recommendation and lawfully uses medical marijuana but is doing so in violation of an employer policy, the employer can still take action. The Ohio Revised Code goes so far as to deny unemployment benefits to employees who use medical marijuana in violation of a workplace policy. It’s all right there in the “Rights of employer” section of the Ohio Revised Code, Section 3796.28.

This is in contrast to at least one state’s view. In 2017, the Supreme Judicial Court of Massachusetts concluded that employers must, under Massachusetts’ law, accommodate medical marijuana uses in the normal course under the Massachusetts’ anti-discrimination law. In Barbuto v. Advantage Sales and Marketing, LLC, the court found that the anti-discrimination policy in Massachusetts trumped the rights of an employer to enforce a drug-free workplace policy. Think about that for a moment. An employer in Massachusetts violates state law by firing an employee who uses a Schedule I controlled substance under federal law.

Employers in Ohio need not get caught in such a mess. Employers should review and update their policies. A zero tolerance policy to medical marijuana might not be right for every employer. Certainly, those who are covered by DOT regulations or have safety sensitive positions, such as heavy equipment operators, would want to ensure employees are not under the influence of any substance while working. It may be wise for those employers to continue to maintain a drug-free workplace policy that prohibits the use of any marijuana to avoid creating any unnecessary risk in the workplace. However, in less safety sensitive environments, it might be an employer’s desire not to take action against employees who are lawfully using medical marijuana and who are not under the influence or otherwise impaired while working. In those instances, however, employers should ensure their policies clearly delineate when medical marijuana recommendations can be accommodated and under what circumstances. In many of these cases, it will require a dialogue between the employer and the employee to determine if such situations can, in fact, be accommodated. 

Employers outside of Ohio need to be aware of their states’ laws related to marijuana use, because even though the federal law still makes the use of marijuana illegal, it will not necessarily save an employer in every state, i.e., the Commonwealth of Massachusetts.

Until Congress steps in and makes changes to the Controlled Substances Act related to marijuana, state laws will control. However, without good employer policies on this topic, you don’t want to be unprepared for the eventual challenge when and if that time comes. 

Contact Paul Bittner or any of the lawyers in the Labor, Employment and Immigration Practice Group for more information about workplace policies regarding the use of medical marijuana in the workplace.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.