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.

Franklin County Court of Appeals Affirms Dismissal of ADA Claim Brought by Former Drug Addict Who was Fired After Volunteering for Strip Search After Theft Accusation.

Last week, the Franklin County Court of Appeals upheld a summary judgment in favor of a fast food employer concerning a claim for disability discrimination brought by a former employee who had been fired for theft. Turner v. Shahed Enterprises., 2011-Ohio-4654.
The plaintiff was a recovered drug addict and convicted drug offender who was hired by the restaurant after she successfully passed a pre-employment drug screen (which was apparently not administered to any applicants who had not identified prior drug convictions). After an employee identified the plaintiff as being seen placing $50 in her pocket shortly after money went missing from the manager's desk, the plaintiff was confronted with the accusation. She volunteered to undress to disprove the accusation and the assistant manager permitted her to do so in the restroom. The money was later found near the plaintiff's work station in an area where all of the other employees also had access. The plaintiff was interviewed and release by police officers, but was still fired the next day. The plaintiff claimed that she was discriminated against on account of her former addiction when she was required to submit to a drug test when other employees were not, when she was required to undress to disprove the theft accusation, and when she was fired for attempted theft.

First, the Court found that requiring the plaintiff to submit to a pre-employment drug test was not a material adverse job action that could support a claim for discrimination. Further, the Court found it permissible for employers to adopt reasonable drug testing procedures to ensure that recovered addicts did not (or had not) relapsed. The ADA specifically provides that it shall not be a violation of the ADA for an employer to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that recovered or recovering individuals are no longer engaging in the illegal use of drugs. 42 U.S.C. §12114(b).

Second, the Court found that the employer lawfully terminated the plaintiff because it believed that she had attempted to steal $50 based on the accusation of a co-worker and the fact the money was eventually found near her work area. While another employee could have placed the money there and it was not found on the plaintiff, that the employer may have been mistaken does not mean that it was not motivated by its belief that she was a thief. The plaintiff could identify no evidence that her status as a recovered addict was the actual reason that she was terminated in light of the theft investigation.

Finally, the Court dismissed her invasion of privacy claim because she had volunteered to undress in front of the assistant manager to prove her innocence even after she was told that it would not be necessary:

Based upon the undisputed evidence, appellant voluntarily undressed in front of an assistant manager, while in a private bathroom, in order to show that she did not have the missing money on her person. Nobody asked her to undress. Rather, appellant was instructed that she did not have to undress, and she insisted in an attempt to exonerate herself. The expectation of privacy appellant now seeks to protect was lost when she undressed on her own volition.

The outcome would probably have been different if she had been threatened with termination if she did not agree to a strip search.

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 change or be 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.

Ohio Appeals Court: Use of Illegal Drugs Was Not Sufficiently Gross Misconduct to Disqualify Employee from Payment for Unused Vacation Pay.

Last month, the Ohio Court of Appeals for Summit County affirmed judgment in favor of a manager who was terminated for failing a drug test (for cocaine and marijuana) on his claim for payment of unused vacation pay under the employer’s policy. Lang v. Quality Mold, Inc., 2008-Ohio 4560. Under the employer’s policy, an employee could be paid for unused vacation pay when the employee was guilty of one instance of serious misconduct or incompetence, but was not entitled to be paid for unused vacation pay when terminated for gross misconduct. Neither the employee handbook nor any other written policies specified whether a positive drug test constituted gross misconduct or was merely serious misconduct. Accordingly, the trial court decided to construe the handbook against the employer (who drafted it) and considered court decisions construing the statutory standard under COBRA (which denies continued medical coverage when an employee is terminated for gross misconduct).

The Court ultimately determined that testing positive for illegal drugs was merely serious misconduct and not gross misconduct. In reaching this conclusion, the court disregarded the undisputed testimony of the Human Resources Director that the employer’s past practice was to deny payment for vacation pay to employees who were terminated for illegal drug use. It is also worth noting that COBRA does not define “gross misconduct,” but that some courts required the behavior to be extreme and outrageous, while other courts have found that it merely needed to be intentional. The court was influenced by the fact that there was no evidence that the terminated manager had been dealing drugs or that his job performance or attendance had been affected by use of illegal drugs.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-4560.pdf.

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 change or be 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.