July 20, 2018

The Employer's Guide to Medical Marijuana

by Michel Jendretzky, Newhouse, Prophater, Kolman & Hogan, LLC

Potentially beginning later this year, Ohioans with certain medical conditions will be eligible to buy, possess and use medical marijuana. What does that mean for employers? It depends on the circumstances.

An employer must maintain a drug-free workplace – even free of state-authorized medical marijuana - if the employer is a federal contractor, otherwise receives federal funds or employs workers in federal safety sensitive positions. An employer must also maintain a drug-free workplace if it receives a workers’ compensation insurance rebate for a drug-free workplace from the Ohio Bureau of Workers’ Compensation and wishes to keep receiving that rebate.1

All other employers have a choice, as the law neither requires nor prohibits accommodations for medical marijuana use. The law provides several, explicit protections for employers who take adverse employment action against employees based on medical marijuana use. Employers are expressly permitted to continue with drug testing policies and zero-tolerance, drug-free workplace programs, and employees who are discharged for violation of such policies are ineligible for unemployment compensation benefits.2 Employers who choose to take adverse employment action against employees who use medical marijuana should take care, however - depending on the circumstances, an adverse employment action based on medical marijuana use could be perceived instead as an adverse employment action based on disability or perceived disability, which is prohibited under Ohio law.3

Employers can accommodate medical marijuana use among employees and have several options in doing so. For instance, an employer who tests their employees for drugs could treat positive marijuana tests like other positive drug tests – look for a prescription (a “recommendation” in the case of medical marijuana) and decide whether an accommodation can be made for that treatment. The employer can even have different testing and usage rules for different employment classifications, perhaps continuing drug testing and discipline for marijuana usage among safety-sensitive positions and discontinuing the practice for non-safety sensitive positions.

For all employers, the lesson is the same: review your current workplace policies, reconsider those policies in light of the new Ohio law and any obligations you might have to maintain a “drug-free” workplace, and revise your policies as needed.

1. Ohio Revised Code §3796.28(A)(6). See also “Medical Marijuana and Its Impact on BWC,” Ohio Bureau of Workers’ Compensation, https://www.bwc.ohio.gov/downloads/blankpdf/medmarijuanaimpact.pdf, access May 23, 2018.
2. R.C. 3796.28.
3. R.C. 4112.02.