March 15, 2019

What Every Employer Needs to Know About Medical Marijuana in Ohio

by Walter (Chad) Blackham, Mac Murray & Schuster LLP

In January, Ohio’s Medical Marijuana Control Program, or MMCP, formally launched with the opening of the state’s first dispensaries.

Years in the making, the MMCP provides alternative medical treatment to eligible patients but also raises difficult questions for employers on how to deal with qualifying employees. Conflicting federal and state laws as well as concerns about how to remain compliant in the face of an evolving regulatory landscape should be of the utmost concern to every Ohio business owner.

The MMCP allows employers to accommodate or prohibit medical marijuana use as they see fit. Employers have wide managerial discretion, and may make hiring and other employment decisions based on medical marijuana use. Additionally, because medical marijuana remains illegal under federal law, it is not protected under the Americans with Disabilities Act and employers are not required to accommodate its use.

Employers should be cautious, however, as the employee’s underlying medical condition may be covered by the ADA. While the MMCP protects employers from lawsuits if they fire an employee for medical marijuana use pursuant to company policy, failure to follow protocol may create the appearance that the employee was instead fired because of their underlying condition. Employers should make employment decisions in accordance with standing company policy, or risk potentially subjecting themselves to retaliation under the ADA.

To further protect themselves, employers should avoid making firing decisions based on medical marijuana use if they expressly state or imply that they will accommodate qualifying employees. However, if an employer prohibits medical marijuana and fires an employee for its use, Ohio law provides that the employee will be discharged for “just cause.” As such, employees fired for medical marijuana use pursuant to company policy are generally not eligible for severance benefits and are likely barred from receiving state unemployment compensation.

Insurance issues must be considered as well. Employers who accommodate medical marijuana should review drug-testing procedures in light of their policies. Marijuana can remain in an individual’s system for extended periods of time, and a drug test can produce a positive result even if the employee has not used medical marijuana for several days. If a business’s policies mandate drug-testing following an accident, employees who test positive may be denied coverage even if they were not under the influence at the time of the accident.

Despite the challenges it presents, accommodating medical marijuana use can help businesses retain skilled employees and prevent “brain drain.” To maximize the benefits of their policies, employers should institute clear and uniform procedures. For example, they may choose to have a physician verify the employee’s medical condition, or they may consult with the employee’s doctor regarding reasonable accommodations. Employers should consider modifying the duties of medical marijuana users in safety-sensitive positions.

The MMCP represents a new frontier bringing unique legal challenges to Ohio business owners. Whether an employer wishes to accommodate or prohibit medical marijuana use, retaining counsel to review and evaluate your company’s policy can help you maintain compliance and protect your business from liability.

Employers have wide managerial discretion, and may make hiring and other employment decisions based on medical marijuana use.