Ohio Enacts Medical Marijuana Statute

Earlier this month, Governor Kasich signed House Bill 523 authorizing a restrictive version of medical marijuana in Ohio. The statute becomes effective on September 8.   Medical pot cannot be smoked in Ohio even by prescription and will be regulated like other drugs. The statute also contains a specific provision – Ohio Revised Code § 3796.28 --  permitting employers to prohibit marijuana use by its employees, to deny accommodation of medical marijuana, and to contest unemployment compensation and workers compensation when the claimant-employee has been fired for using medical marijuana in violation of the employer’s policy or formal program.   Medical marijuana remains illegal under federal law.  That being said, there remains a risk that courts will eventually treat medical marijuana like any other legally prescribed (under state law) controlled substance and find that the ADA requires the reasonable accommodation of off-duty medical marijuana use even if the employer prohibits off duty illegal drug use.   In that event, an employer may need to show that the employee was impaired at work.

Sec. 3796.28. (A) Nothing in this chapter does any of the following:

(1) Requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;

(2) Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s use, possession, or distribution of medical marijuana;

(3) Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;

(4) Interferes with any federal restrictions on employment, including the regulations adopted by the United States department of transportation in Title 49 of the Code of Federal Regulations, as amended;

(5) Permits a person to commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana;

(6) Affects the authority of the administrator of workers’ compensation to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program established in accordance with rules adopted by the administrator under Chapter 4123. Of the Revised Code.

(B) A person who is discharged from employment because of that person’s use of medical marijuana shall be considered to have been discharged for just cause for purposes of division (D) of section 4141.29 of the Revised Code if the person’s use of medical marijuana was in violation of an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana.

The ADA contains a specific section on the illegal use of drugs and alcohol at 42 U.S.C. § 12114.  A “qualified individual with a disability” does “not include any employee or applicant who is currently engaging in the illegal use of drugs. . . . “  Tests “to determine the illegal use of drugs shall not be considered a medical examination.”   However, “illegal use of drugs” is defined earlier at §12102(6)  to mean the use of drugs which are “unlawful under the Controlled Substances Act,” but “does not include the use of a drug taken under supervision by a licensed health care professional or other uses authorized by the Controlled Substances Act or other provisions of Federal law.”  “Drug” means “a controlled substance as defined in schedules I through V of section 2020 of the Controlled Substances Act.”  While medical marijuana is not authorized by the CSA or other provisions of federal law, in Ohio and other states, it can now be taken under the supervision of a licensed health care professional as provided in the ADA.  Therefore, an argument could conceivably be adopted by a court in the future that medical marijuana does not constitute an illegal drug under the ADA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.